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Do you know the six elements of a legally compliant disciplinary hearing?

by , 13 June 2013
Australia's David Warner is in hot water once again. He's facing his second disciplinary hearing in three weeks. This time, it's reported he punched England batsman, Joe Root in an altercation. And while the batsman has since been dropped from the Australian team, Cricket Australia officials now face the daunting task of ensuring the disciplinary hearing is conducted in a legally compliant manner. Here's what you need to know if you could find yourself in a similar situation....

Warner faces a disciplinary hearing on Thursday via a conference call with Cricket Australia officials in Melbourne which could result in him being sent home from the tour (Champions Trophy) in disgrace, The Telegraph reports.

If you find yourself in a similar situation, it's crucial that your disciplinary hearings are effective, fair and legally compliant.

This means 'all disciplinary hearings must be conducted with procedural and substantive fairness,' says The Labour Law for Managers Loose Leaf Service. If you fail to do this, your employee could take you to the CCMA for unfair dismissal.

How can you do this?

Use the six elements to ensure your disciplinary hearings are effective and legally compliant

The Labour Law for Managers Loose Leaf Service advises you use these elements to ensure your disciplinary hearings are legally compliant.

#1: Investigate and prepare your case thoroughly before the hearing

You need to investigate the allegations thoroughly. This will entail collecting witness evidence that may include people who saw or heard what happened.

Remember, investigating the matter isn't enough to complete your preparation. You need to consider suspending the employee, develop your strategy, formulate the charges and notify the employee of the hearing.

#2: Choose an unbiased and skilled Chairperson

You're entitled to appoint someone from outside your company to be the Chairperson. The advantage of this is that you can choose an expert in labour law who isn't biased, has the experience and expertise to chair the hearing effectively and within the bounds of the law.

#3: Ensure the accused employee is given every chance to prepare and defend his case

Remember your employee has the right to prepare the evidence he will lead in his disciplinary hearing.

#4: Base the outcome on the facts

It's crucial that the Chairperson of the hearing establishes the findings from the facts and on the balance of probabilities whether the employee is guilty or not guilty.

#5: Ensure the penalty is appropriate to the offence

The Chairperson must decide on an appropriate sanction, taking into account the following:

  • The seriousness of the offence.
  • Extenuating circumstances in which the offence occurred.
  • The employee's service records.
  • Aggravating and mitigating circumstances.
  • The manner in which similar offences elsewhere in the organisation were dealt with in the past.

#6: Record the disciplinary hearing so you can prove you complied with the law

This will also help you should you dismiss your employee and he in turn takes you to the CCMA or bargaining council claiming you dismissed him unfairly.

Knowing the six elements of an effective and legally compliant disciplinary hearing will ensure you conduct your employee's hearing in a procedurally fair manner.


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