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Six requirements for a fair disciplinary hearing

by , 21 October 2015
If your employee commits misconduct, you can't just dismiss him.

You need to first hold a fair disciplinary hearing. A fair disciplinary hearing gives him the opportunity to prove he's innocent.

And if your hearing isn't fair, your employee can report a case at the CCMA.

Follow the below six requirements for a fair disciplinary hearing so your employees don't accuse you of unfair labour practices...

***Author recommends***
Everything you need to know about substantively and procedurally fair disciplinary hearings

So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail.
But not you!

Here's why…

Requirements for a fair disciplinary hearing

1. Notify the employee of the allegations against him using a form and language the employee can reasonably understand. Give your employees at least 48 hours' notice of a disciplinary or performance hearing.

2. Hold a hearing before disciplinary action is taken to ensure the employee has an opportunity to challenge the evidence before a final decision is taken against him.

3. Make sure the hearing follows as soon as reasonably possible after the incident in question, preferably not later than two to three weeks.

4. Advise the employee in writing of the precise charge he's required to answer in advance of the hearing, otherwise the employee won't be in a position to prepare his defence. Prepare the allegations in precise, simple terms and in a way he can clearly understand what's going on.

5. The employee should be present at the hearing. However, you can proceed with the hearing if the employee refuses to attend or participate without good cause or has absconded.

6. The employee should be entitled to the assistance of a trade union representative or fellow employee to represent him in the disciplinary proceedings.

In light of a court decision (MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani (2005) 2 BLLR 173 (SCA)) there is a perception employees are entitled to legal representation in the hearing. This isn't true. The general rule is even though an employer's disciplinary code provides that an employee may only be represented in a hearing by a co-employee, the chairperson of the hearing has a discretion to allow legal representation if the employee requests it.

Follow these six requirements and make sure you avoid being accused of unfair labour practice. For step-by-step guide on how to prepare for a procedurally fair disciplinary hearing, get your copy of the Disciplinary Hearings electronic report.


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