The Stages in a Formal Disciplinary Hearing

Guideline: Notice of a Disciplinary Hearing

• Allegations against the employee should as far as possible be drafted to align with offences outlined in the employee’s contract or if applicable, the employer’s Disciplinary Code.
• If an allegation involves gross misconduct, the allegation should commence with the words “Gross Misconduct: Item xxx of Disciplinary Code: …” or “Gross Misconduct in that you …” this will alert the employee to the fact that the offence is seen as a serious one.
• Note, subject to an existing collective agreement or disciplinary procedure, that employers do not need to hold a disciplinary hearing for every offence; if you are satisfied that the offence will result in no more serious sanction than a final written warning, an informal disciplinary interview or meeting can be used to allow the employee an opportunity to respond to the allegations, and if you are satisfied that the employee committed the misconduct, an appropriate warning can be issued.
• When an alleged offence is seen as dismissible, a slightly more formal hearing should be held, although even then the level of formality is limited.
• The key requirements for procedural fairness are that:
  • The employee must be notified of the allegations in a form and language that he/she can reasonably understand;
  • The employee must be allowed a reasonable time to prepare (usually 48 hours is considered sufficient, but this should be extended in complex matters);
  • The employee is entitled to be assisted by a fellow employee (including a shop steward, if any registered trade union has been granted organisational rights to have elected shop stewards for this purpose);
  • The employee must be given a reasonable opportunity to state a case in response to the allegations; and
  • The employee must be advised of the outcome (preferably in writing).
• Being given a “reasonable opportunity to state a case” would include the right to call relevant witnesses and the right to an interpreter if the employee is not reasonably proficient in the language to be used in the hearing. The interpreter does not need to be a qualified translator, and can be simply a fellow employee who is proficient in both languages.
• Assistance by a trade union representative (shop steward) only applies if a registered trade union has been granted organisational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist you if s/he is a fellow employee.
• If the employee is a shop steward, an employer should notify the trade union of the impending allegations prior to issuing the notice of disciplinary hearing, and consult with the union. The purpose of consultation includes to discuss the possibility of representation of the shop steward by a union official (not compulsory, but often allowed) and the timing of the hearing.
• The employee should be requested to sign a copy of the notice, purely as an acknowledgement of receipt. If s/he refuses, a witness should be requested to sign as confirmation that the notice was handed to the employee.

Representation at a Disciplinary Hearing

It is a requirement for procedural fairness for an employee to be assisted by a fellow employee or a trade union representative at a disciplinary hearing.

1. Representation by a fellow employee

• Schedule 8 to the Labour Relations Act 66 of 1995 (LRA), the Code of Good Practice: Dismissal (the Code) provides that employees are entitled to be assisted by a fellow employee during disciplinary hearings at the workplace. The employee needs to be informed of this and of the fact that it is his/her responsibility to make arrangements for such representation if it is required.

• If the employee wishes to arrange for the release of his/her representative to attend the enquiry, s/he needs to notify management at least 24 hours before the time of the hearing.

2. Representation by a trade union representative (shop steward)

• The Code provides that employees are entitled to be assisted by a trade union representative (shop steward). However, this only applies if a registered trade union has been granted organisational rights to have elected shop stewards for this purpose.

• A trade union representative who does not satisfy this criterion may only assist the employee if s/he is a fellow employee. Under these circumstances, the employee must be made aware of the procedure that needs to be followed as discussed under item 1 above.

3. Representation by a labour consultant or legal representative

• The Code does not mention whether the employee may be assisted by an attorney, an advocate or by a labour consultant during disciplinary proceedings.

• Sometimes, a contract of employment, disciplinary code or a collective agreement will state who may represent an employee during disciplinary proceedings at the workplace, in which case, this should be applied.

• Traditionally disciplinary codes or collective agreements are based on the view that workplace discipline is a function of line managers and that representation of employees should therefore also be limited to fellow employees or shop stewards.

• Furthermore, as most line managers do not have any legal background, in the interest of fairness, it has not been considered advisable to allow employees legal representation at workplace proceedings.

• According to our courts there is no general and unrestricted constitutional right to legal representation at disciplinary proceedings.

• However, where a disciplinary code or a collective agreement does not allow for legal representation at disciplinary proceedings, this does not prevent an employee from requesting this.

• According to the courts, in order for disciplinary proceedings to be fair, it is necessary for the person presiding over the hearing to allow and consider a request for representation based on the company procedures, the comparative ability of the parties, and-
  • the nature of the allegations against the employee;
  • the factual or legal complexity raised by the allegations;
  • the potential seriousness of a finding against the employee; and
  • the prejudice that an employer may suffer in permitting legal representation.

4. Disciplinary action against a trade union official

• The Code provides that where disciplinary action may be taken against an employee who is a trade union representative, office bearer or official of a trade union, this should not happen without first informing and consulting the trade union.

• While the Code is silent on whether this should be extended to allowing representation by a trade union official who is not employed by the employer, it is suggested that the same considerations that apply to legal representation should apply here.

5. General

• While there is no automatic right to representation during a workplace disciplinary hearing by a person other than those listed in a collective agreement, contract of employment, disciplinary procedures or the Code, it may be manifestly unfair for a the person chairing the hearing to dismiss such a request without first having applied his/her mind to the particular circumstances of the case.

• The guidelines set out above would also apply to an incapacity hearing.