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Six steps you need to take to conduct a 'free and fair' disciplinary hearing

by , 14 January 2013
Six steps you need to take to conduct a 'free and fair' disciplinary hearingEven if you've been more than fair and have given your employee plenty of leeway and issued progressive warnings - you can't just fire them. If you do, your employee can take his case to the CCMA. That's why holding a water-tight disciplinary hearing is so important. Use these six steps to ensure your next one is ...

Follow these six steps to the letter to ensure dismissals can't come back to bite you

Step #1: Investigate and prepare your case thoroughly before the disciplinary hearing.
The first thing you need to determine is whether you have a case to dismiss your employee or not. This includes putting together evidence and witness reports of your employee's misconduct. You also need you give your employee enough time to put together his case.
 
To protect yourself and ensure your case is watertight, have an independent person look through the evidence and reports.
 
Step #2: Choose an unbiased and skilled chairperson.
Your next step is to appoint a chairperson to oversee the disciplinary hearing. This person will ensure the hearing is fair to both parties.
 
The chairperson will also be in charge of leading the procedure on the day. For more details on what your disciplinary hearing chairperson should do, check section D11 of your Labour Law for Managers Handbook.
 
Step #3: Both sides must be given a change to state their case
As with all cases, both sides must be given a chance to support their case by bringing witnesses and documentary evidence that supports their case.
 
It's important to note that during the disciplinary hearing, your employee must also be granted an opportunity to cross examine you, the Complainant, and any of your witnesses after they've given evidence.
 
However, neither you nor your employee are allowed to ask any of the witnesses leading questions. For example, you'd be leading or influencing your witness to answer 'Yes' if you ask: 'Isn't it true that the accused took a bribe from you?'
 
Step #4: Inform the employee of the finding and the reasons behind them
Once the disciplinary hearing is over, the Chairperson will adjourn to establish from the facts and decide whether or not the employee is guilty or not guilty. The employee should be informed of the finding and the reasons.
 
At this stage, the employee will be given an opportunity to raise mitigating and aggravating circumstances, which the Chairperson will consider before deciding on the appropriate penalty including dismissal.
 
The Chairperson will also inspect the employee's service record to see if there are any relevant and valid warnings on record. If there are unexpired warnings for infringements similar to that of the current case, the Chairperson must also take these into account.
 
Step #5: The Chairperson decides on the appropriate penalty
The Chairperson must decide on an appropriate sanction. To do this, he'll take into account the following:
  • The seriousness of the offence
  • Extenuating circumstances in which the offence occurred
  • Similar previous offences committed by the employee
  • Other similar valid warnings on the employee's record
  • 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
You must inform the employee and his representative of the penalty (whether it be a verbal or written warning, a demotion, suspension or dismissal), in writing.
 
Depending on the nature of your company's disciplinary policy, you employee may or may not be allowed to appeal the judgment. Again, you must notify the employee in writing whether or not he has the right to refer the matter to the CCMA or bargaining council.
 
Step #6: Record the hearing so you can prove you compiled with the law
Your last step is to make sure that the entire hearing is recorded in writing so you can prove you followed the correct processes as outlined by the Labour Relations Act.
 
Failure to comply with correct procedure – especially if you dismiss the employee – could result in your employee taking you to the CCMA or bargaining council on ground of unfair dismissal.
 
Don't be caught on the wrong side of the law. Join the thousands of business owners who are getting expert advice on all labour-related topics including disciplinary hearings by signing up for a 90 day trial to the Labour Law for Managers Loose Leaf Service today.
 

If you're looking for more information on the correct procedures for running a fair disciplinary hearing, take a look at these articles:
NEVER EVER make these 4 mistakes when disciplining an employee
Describe allegations of misconduct correctly or face losing at the CCMA


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