The difference between formal and informal disciplinary hearings
How to implement a code of good practice.
An employee who has been accused of misconduct has a right to be heard, which emanates directly from the Constitution of South Africa. Dismissal, however, does not require that process to be a formal one.
An employee must be told what case he has to meet and be given a proper opportunity to prepare and present his case.
Many tens of thousands of employers lose cases at the CCMA and bargaining councils because they take too seriously the provision that the disciplinary process does “not need to be a formal one”. in practice it is all but impossible to comply with the other provisions of the law of dismissal without making the disciplinary hearing process a formal one.
That is, in order to avoid an unfair dismissal decision the employer must adhere to section 188(1)(b) of the LRA and must prove that it complied with the following procedural rights of the employee:
- The right to be informed as to what the charges are – Proof would be a clearly and comprehensively written charge sheet, receipt for which has been signed by the accused employee
- The right to a proper opportunity to prepare - Proof would be a written notice of hearing, given to the employee well in advance of the hearing, receipt for which has been signed by the accused employee well in advance of the hearing date
- The employee’s right to be heard and to present a defence – proof would be minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses and cross-examine evidence brought against him/her
- The right to be fairly judged - proof would be minutes of the hearing showing that the person was even-handed and treated the accused without bias.
I admit that, in certain cases, proof of the above mentioned compliance could be provided by means other than signed notices and minutes of proceedings. Such other proof could include, for example, oral evidence from witnesses. However, between the disciplinary process and the arbitration hearing at CCMA a great many months may elapse. As a result the memories of witnesses fade and witnesses themselves disappear. Therefore, there is no effective replacement for written records. Consequently, once one introduces the use of records such as minutes, hearing notices and charge sheets one is converting the disciplinary process into a formal one.
In summary, the employer’s onus to prove that all the employee’s rights have been complied with makes a formal and expertly controlled hearing essential.
The officials who carry out the corrective procedure need to be highly skilled in legal procedure in order to make sure that each and every legal right of the employee is strictly adhered to.
Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.
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