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What Cosatu should do in preparation for Zwelinzima Vavi's disciplinary hearing

by , 16 August 2013
The Congress of South African Trade Unions (Cosatu) general secretary Zwelinzima Vavi has been relieved of all his duties. He's been put on special leave pending the outcome of a disciplinary hearing regarding an affair with a woman he appointed to work in Cosatu House. While the trade union federation has also announced the hearing will be chaired by an independent person, they'll do well to also take these steps to ensure they prepare a legally compliant disciplinary hearing.

All disciplinary hearings must be conducted with procedural and substantive fairness, says the Labour Law for Managers Loose Leaf Service.

But you'll only do this if you know how to prepare for your employee's disciplinary hearing.

What to do in preparation of the disciplinary hearing

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.

Let's take a look at these steps in detail.

Step#1: Suspension pending a disciplinary hearing or investigation

Due to the need for an investigation, you may have to suspend your employee which is what Cosatu has done. You may also have to suspend you employee if you feel his presence at work may tamper with your investigation.

Should you suspend the accused employee pending the completion of the investigation he has the following rights:

  • Timeous scheduling of a hearing or the closure of the case
  • Full remuneration
  • Supervised access to witnesses and other sources of evidence necessary to prepare his defence, should a formal disciplinary charge be laid.

You can require the suspended employee to be constantly available during working hours in case you require his services, a meeting or a discussion with him. It may also be a good idea to advise your employee he may not be employed elsewhere while on suspension.

Step#2: Formulation of the charges

After gathering all the facts you must formulate the charges to be brought against the accused employee.

The charge must contain details of who, what, when, where, and why. This should be comprehensive and clear enough so there's no argument from your employee that he didn't have sufficient details to prepare a defence.

'Be sure you have a solid body of provable facts before formulating the charge,' says the Labour Law for Managers Loose Leaf Service.

Evidence sufficient to convince a presiding officer is called proof. In order to provide such proof you must gather, analyse, prepare and present the following evidence types:

Witness evidence that may include:

  • People who saw or heard what happened
  • People who can explain procedures and processes such as disciplinary policies/rules and security procedures
  • Experts who can testify to technical matters such as the illness of the employee, the type of weapon that may have been used or the electronic system through which money may have been stolen.

Documentary evidence that may include invoices, letters, emails, policy documents, security registers, time sheets, box labels and any other documents pertinent to the case.

Objects that may include the cartons of stolen cigarettes, the vehicle your employee may have used for illegal purposes, the key used to open the storeroom and the videotape showing the accused entering the storeroom.

It's important to note that videotape evidence may be inadmissible if your employee was not aware he was being recorded.

Step#3: Preparing your strategy

Once you've completed the investigation and have formulated the charges, you must carefully organise the evidence you've gathered. Prepare in such a way that you provide a full, clear and watertight case against the accused employee.

This aspect of the preparation involves:

  • Sorting and ordering of evidence
  • The selection of witnesses' documents and other evidence to be used, and
  • Deciding how you'll sequence and interweave the evidence for the best effect.

Step#4: Notification of a disciplinary hearing

You must then give your employee notice prior to the formal enquiry. In terms of common practice, a minimum period of 24 hours' advance notice should be given.

Taking these steps will help ensure you prepare a legally compliant disciplinary hearing.

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