It is a settled principle that, in order for a dismissal of an employee to be considered fair, both substantive and procedural fairness are required. Despite the importance of procedural fairness, employers often fail to follow fair procedure whilst conducting disciplinary hearings. Ironically, perhaps in an attempt to avoid failing in this respect, some employers may superfluously overcompensate in respect of formalities concerning disciplinary hearings, sometimes resembling proceedings in criminal trials.
In a recent case in the Labour Court, BEMAWU & Others v SABC & Others (J2239/2015)  SALCJHB 74, it was made comprehensibly clear that courts favour a more simplistic approach when conducting disciplinary hearings.
However, whilst it is important that a disciplinary hearing is distinguished from a criminal trial, it remains essential that a disciplinary hearing is recognised by a structure and formalities. Consequently, the process will conform to procedural fairness – so required if an employee seeks recourse after a dismissal. It is common cause that every employee has the right not to be unfairly dismissed. Section 188 of the Labour Relations Act provides that a dismissal, which is not an automatically unfair dismissal, is required to follow a process which is in accordance with a fair procedure and was awarded for a fair reason.
In line with prevailing legislation and common laws providing for the Audi alteram partem rule, when conducting a disciplinary hearing, it is imperative that an employee is placed in a position to answer to the allegations levelled against him or her.
Employers are urged to embark on a due and proper process of investigation. To sufficiently establish whether there is merit in alleging certain misconduct, the requirements of substantive fairness need to be satisfied.
Once an employer has established that there is merit in alleging misconduct – and provided that it can be classified as serious in terms of the applicable disciplinary code – the employer is in a position to convene a disciplinary hearing.
In order for an employee to be placed in a position to answer the charges brought against him or her, the employee has to be afforded sufficient time to prepare for the pending disciplinary hearing. Whilst the Labour Relations Act does not provide for pertinent details in respect of what exactly would constitute sufficient notice, it is now settled that, subject to possible longer periods provided for in an employer’s disciplinary procedures, 48 hours, excluding weekends and public holidays, is considered a reasonable notice period for an employee to prepare for the pending hearing.
Notionally a controversial aspect in the process, the issue of representation at a disciplinary hearing may potentially lead to conflict. Employers should cautiously consider declining such representation automatically or not, without taking cognisance of certain relevant factors. Factors to be considered would include instances where an employee is affiliated with a union; whether the specific employee is a shop steward or if the relevant union is a party to the bargaining council. The complexity of the matter as well as the comparative ability of the parties might also play a role. In addition, an employee remains at liberty to bring an application for legal representation prior to or on the day of the hearing. The chairperson is clothed with the authority to determine the application for legal representation.
Initiating a fair hearing, the relevant charge sheet certainly requires scrutiny. The formulated charges should be clear, unambiguous and factually correct. Employers are urged to align the formulation of charges with their disciplinary codes. The details concerning times, places, details of people involved, and seriousness of the alleged misconduct need to be described in the charges. Where the circumstances of the offence clearly constitute only one offence, it would be considered unfair to lay more charges against an employee relating to such incident. However, should one offence apply to more factual elements, all with different consequences, the employee may be charged with more charges relating to the one incident or offence.
When an employee is called to a disciplinary hearing, the rights afforded to the employee should be stated clearly on the notice and, additionally, it should also be explained when the employee is presented with the charge sheet. These rights must be given in a language that the employee understands. In circumstances where it is obvious that the employee requires an interpreter, the services of an interpreter have to be obtained in order to ensure that the notice of the disciplinary hearing, the charges, as well as the rights of the employee are clearly understood by him or her.
An employee has the right to present his or her case by testifying in his or her own defence. Witnesses may be called on his or her behalf in an attempt to prove the employee’s case. In turn, the employee has the right to cross examine any witnesses called by the employer.
Any employee has the right to be fairly judged. To achieve this, the presiding chairperson is required to conduct himself in a neutral and objective manner and satisfactorily repudiate any possible claim of bias. The chairperson would need to objectively consider all evidence presented in order to be able to make an informed decision and a subsequent recommendation to the employer.
If an employee is found guilty of the relevant charges, the employee must be afforded the opportunity to present mitigating factors to the chairperson and the employer will similarly have the opportunity to present aggravating factors.
If the sanction imposed is one of dismissal, the employee is required to be informed of the right to appeal the decision reached, provided that the employer has made provision for such a procedure.
Distinguishing the procedure in a disciplinary hearing from the procedure in a criminal trial is imperative. Although a disciplinary hearing requires certain formalities, it should be constructed in a fashion that does not resemble a criminal trial. The Labour Court clearly pronounced that an overcompensating formalistic approach riled with unnecessary formalities, could compromise the true nature of disciplinary hearings not conforming to what is envisaged by the Labour Relations Act.
Written by Douw Breed, who is a director at Barnard Inc Attorneys, Centurion.