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When Is A Formal Disciplinary Hearing Necessary?

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BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Web Address: www.labourlawadvice.co.za.

The Code Of Good Practice: Dismissal in Schedule 8 makes it clear that,
while the disciplinary process can, under certain circumstances, be informal,
the employee should nevertheless be told what case he has to meet and be given
a proper opportunity to prepare and present his response.”

Ivan Israelstam

While it is clear that the abovementioned Code Of Good Practice
provides that the disciplinary hearing need not be formal section 188(1)(b) of
the Labour Relations Act (LRA) requires that the employer has the onus of
proving that a dismissal was procedurally fair. The key question is ‘How can
the employer go about proving that the dismissal was procedurally fair without
using formal processes to ensure fairness and to demonstrate that the procedure
was indeed fair?’ for example, The Code Of Good Practice does accord the
employee the following procedural rights:

  • The
    right to be informed as to what the charges are – Proof would be a written
    charge sheet, receipt for which has been signed by the  accused employee
  • The
    right to a proper opportunity to prepare – Proof would be a written notice of
    hearing, given to the employee well in advance of the hearing, receipt for
    which has been signed by the  accused
    employee well in advance of the hearing date
  • The
    employee’s right to be heard and to present a defence – proof would be minutes
    of the hearing showing that the employee had a chance to state his case, use an
    interpreter and representative, bring witnesses and cross-examine evidence
    brought against him/her

Consequently, once one introduces the use of records such as minutes, hearing notices and charge sheets one is converting the disciplinary process into a formal one. In my view, this conversion is reinforced by the need to separate the complainant role from the presiding officer role in order to eliminate bias.

However, it appears that my view is in conflict with that of one Labour
Court Judge. In the case of Avril Elizabeth Home for the Mentally Handicapped
vs CCMA and others (2006, 9 BLLR 833) the finding of the Court suggests that
avoiding of bias at a disciplinary hearing is not a requirement. Other findings
that came out of this case are as follows:

  • Video
    coverage does not have to be absolutely conclusive to be accepted, it need only
    satisfy the balance of probabilities requirement
  • The
    procedure bringing about a dismissal does not have to be a formal enquiry
    unless the parties have agreed that it will be a formal hearing

I am in agreement with the honourable Court as regards the principle of
balance of probabilities and as to the fact that The Code Of Good Practice does
not require a formal hearing. I have, however, explained why, in practice, it
is very difficult for an employer to comply with the requirements of The Code
Of Good Practice without using the mechanisms of a formal process. This is
necessary, not because the Code says so (which it does not) but rather to make
sure that the employer can satisfy its onus of proving that it has complied
with the content and spirit of that Code.

As regards the apparent finding that an unbiased chairperson is not
necessary at a disciplinary hearing I respectfully believe that, if the Court
really meant to say this, its decision cannot be correct and will be overturned
sooner rather later. I would prefer to believe that the Court only meant that
the test for bias of the chairperson should not be as stringent as that applied
in criminal law.

My view is based on the fact that The Code Of Good Practice requires
that the employee is afforded the opportunity to present his/her case, and the
central core of labour law requires fairness. I submit that no employee can
present his/her case fairly before a biased chairperson. To allow biased
chairpersons to chair internal disciplinary hearings and then dismiss employees
would make a mockery of such hearings. The employee would lose his job and livelihood
unfairly and could then lose his/her house, car and other assets while he/she
is waiting for the labour law process at CCMA and Labour Court to take its
course. Allowing such a situation would be akin to allowing a kangaroo court.

In summary, the employer’s onus to prove that all the employee’s rights
have been complied with makes a formal and expertly controlled disciplinary
hearing essential. This holds true even if the only procedural rights an
employee has are those few specifically provided for in The Code Of Good

While the officials who carry out the corrective procedure do not need
to be lawyers they do need to be well skilled in disciplinary procedure in
order to make sure that each and every legal right of the employee is strictly
adhered to.

Therefore, managers must either be thoroughly trained in disciplinary
process or the employer must hire a reputable labour law expert to chair its

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The post When Is A Formal Disciplinary Hearing Necessary? appeared first on Randburg Chamber of Commerce and Industry.