Disciplinary hearing guide: Misconduct.
What you need to know before attending a disciplinary hearing to be able to defend your job.
Author: S.P Masondo of Legal-Waze (Pty) Ltd.
Authority: Labour Relations Act & Code of Good Practice.
INTRODUCTION:
Often than not employees view a disciplinary hearing as a bad thing because it means an employee may be in trouble and at risk of losing their job. However, from a legal point of view a hearing is not a bad thing because it ensures that employees are given an opportunity to at least defend themselves before they face any punishment from employers, the worst of which is a dismissal. It is important to prepare for a hearing so you know your rights and can exercise them to protect your job (Contact Legal-Waze for specialised guidance).
SUSPENSION BEFORE THE HEARING:
– An employee who is suspected of having committed a misconduct may be suspended from work pending an investigation of the alleged misconduct and possible hearing.
– Such a suspension is referred to as a preventative suspension and the employer MUST PAY the employee his/her normal salary during the suspension.
-This is done to prevent an employee from interfering with the investigation, or witnesses, or evidence, or even possibly repeating the same alleged misconduct or committing a further different one.
THE CHARGES:
– If an employee is suspected of having committed a serious misconduct, the law does allow the employer to charge the employee for the misconduct.
– The charge(s) must be in writing in a form of a charge sheet and must be given to the employee at least 48 hours before the hearing.
– The charge(s) must be clearly explained in the charge sheet and must coincide with the misconduct of the employee.
– A charge does not need to be true as it is merely a suspicion by the employer that the employee committed a misconduct.
– It is the employer’s duty to prove the truthfulness of the charge(s) during the hearing before an employee may be punished for the misconduct.
– The employer may prove the truthfulness of the charges by way of: CCTV footage, witnesses, photos, recordings, documents etc.
LEGAL REPRESENTATION:
– A disciplinary hearing is an internal company process, therefore external legal representation is not allowed, unless the employer allows it and confirms this in writing.
– An employee may only represent him/herself, be represented by a colleague, trade union, or a workplace forum.
EMPLOYEES’ RIGHTS:
– A right not to be unfairly dismissed (Substantively & procedurally),
– A right not to be dismissed without a hearing,
– A right to be given a reasonable time to prepare before the hearing, which must be at least 48 hours,
– A right to request an interpreter who speaks a language of their choice before the hearing,
– A right to represent themselves, or be represented by a colleague, or a trade union, or a workplace forum,
– A right to be given an opportunity to plead (guilty or not guilty),
– A right to be given an opportunity to state their version of events/side of the story,
– A right to call witnesses,
– A right to lead/provide evidence in support of their version of events,
– A right to challenge the outcome of the hearing through an internal company appeal, if one is available, and
– A right to refer the matter to the CCMA or bargaining council within 30 days.
THE HEARING:
– An employee may not be fairly dismissed without having been called for a hearing.
– The hearing should be presided over by a chairperson whose responsibility is to hear evidence from both the employer and the employee, then make a decision.
– When the hearing starts, the employee will be told of the charges brought against them, thereafter, asked to plead (guilty or not guilty).
If THE EMPLOYEE PLEADS GUILTY-
* The chairperson will consider the evidence the employer has brought against the employee,
* What the employee has to say to mitigate/justify the misconduct,
* Then the chairperson will give an outcome and recommend an appropriate punishment deserving of the employee’s misconduct.
IF THE EMPLOYEE PLEADS NOT GUILTY-
* The employer must provide evidence to prove the truthfulness of the charges (CCTV footage, witnesses, photos, recordings, documents etc).
* The employee must be given an opportunity to state their version of events in dispute of the charge (s) and adduce evidence to support their version of events.
* Then the chairperson will give an outcome (guilty or not guilty) and recommend an appropriate punishment deserving of the employee’s misconduct if found guilty.
THE OUTCOME & PUNISHMENT:
– If an employee is found not guilty then the employee must not be punished for the charges in any way.
– If the employee is found guilty then the employee may be given a punishment appropriate or deserving of the misconduct.
– Punishments include:
* Dismissal, or
* Suspension without pay for a specified time period (Punitive suspension), or
* Appropriate warning (first written warning, or second writing warning, or final written warning).
– It is important to note that the less severe a charge is, the less of a punishment it deserves. Therefore, employers may not just dismiss employees even for trivial reasons.
CONCLUSION:
The law regulates the relationship between employers and employees in the workplace to ensure that the interests of both parties are protected. However, some employers take advantage of employees due to lack of knowledge or because of their positions of power. Therefore, it is important to go through reading materials such as this one to prepare yourself for disciplinary processes. Unfortunately, reading materials only may not be enough to prepare you to challenge charges of misconduct as they differ from case to case, it is then always advisable to consult for guidance so we can assess your matter and guide you on what defences you can use to protect your job (Contact Legal-Waze for specialised guidance).
