Experts from Bowmans and erNavigator discuss online disciplinary hearings among other things.
Most employers have disciplinary policies in place but, to a large extent, those policies are inapplicable to remote working. CHRO South Africa hosted a webinar on Wednesday 16 September about how to navigate this and various other labour relations matters online.
Bowmans senior associate Nikita Reddy explained how most employers have disciplinary policies in place but how, to a large extent, those policies are inapplicable to remote working. This is because Most disciplinary policies take for granted that a disciplinary process will be conducted in person and generally allow for the presentation of evidence and the cross-examination of witnesses.
“They often contemplate face-to-face interviews from investigations in order to establish context and may also involve a number of other hearings as well as a panel of decision-makers that usually need to be able to deliberate in person. Traditional policies would make it difficult if not impossible for employers to manage discipline while working remotely,” said Nikita, adding that a mindset shift is required to modernise workplace labour relations.
“Most employers choose to adopt more complex procedures than what is actually required by law.”
erNavigator’s COO Gary Slom said that not digitising labour relations creates a lot of risks in the business. The risk that organisations won’t be compliant with their own policies, the risk that they won't be able to practise labour relations consistently throughout the organisation, and the risk that they won't be compliant with data privacy laws.
“When we have information and documentation throughout the organisation of emails and data-based files, it's very difficult to control data privacy. There is also the risk that you won't be making proactive decisions because it becomes difficult to extract real-time labour relations data when you need it. And these are just the risks during the normal order of business,” said Gary.
“With Covid-19 brought into the fray, these risks are exacerbated. Nevertheless, HR and industrial relations managers still have to comply with the requirements, policies and processes even though they are working crossing a decentralised and scattered workforce.”
Pros and cons
Bowmans partner Khomotso Makapane explained the process their organisation went through to facilitate online hearings saying, “One of the biggest stumbling blocks we faced was the lack of willingness to try. Some of us were so stuck in our ways that it was difficult to adjust our mindset.”
He said there was a lot of pushback from tribunals and courts regarding virtual hearings despite the President's instruction that any work that can be done remotely should be.
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Eventually, however, they managed to get buy-in from the relevant roleplayers and, having conducted a few hearings during the lockdown, Khomotso outlined a few pros and cons. He said the biggest benefit was being able to find the best commissioners and investigators for the job as people can work from wherever they were.
Said Khomotso: “Before lockdown, I used to travel a lot across the country. I would go to an area and would have struggled to find a senior commissioner, or I would be forced to work with commissioners that I wouldn't ordinarily choose because of the nature of the matter. If one is dealing with a social media matter or a sexual harassment matter, you ideally want to work with someone that has experience in dealing with those kinds of things or at least knows enough about the subject matter to make an educated pronouncement. It is not everyone who should preside over those niche hearings.“
The obvious con, Khomotso continued, was the data issues because, with hearings last for up to three days, data can be a huge expense. It is also necessary to provide laptops to participants who may not have one.
