An appeal is used to review whether a decision that’s been made should be overturned or changed. Within a reasonable period after a disciplinary hearing, the employer should furnish the employee with a notice of outcome setting out the finding on each charge and the sanction. Such notice should also advise the employee of the right to appeal the outcome. To initiate an appeal, the employee should file a request for appeal.
The appeal hearing is a chance for the employee to state his/her case and ask the employer to consider a different outcome. It is also an opportunity for an employer to remedy any procedural or substantive mistakes that may have occurred during the initial hearing before the matter is taken to the CCMA or bargaining council.
An appeal is not an automatic right. An employee must show valid grounds for an appeal to be granted. The code of good practice on dismissals does not make provisions for appeal hearings, and an employer must regulate whether appeals are granted internally. Where appeals are not provided for by company policy, the employee has recourse to the CCMA or relevant bargaining council to lodge a dispute about the outcome of a hearing.
There are only 3 grounds on which an employee may apply for an appeal:
- The employee alleges a procedural defect.
- The employee wishes to submit new evidence.
- The employee believes the sanction of the initial inquiry was too harsh.
The employee must be given access to records of the hearing. Employees who are denied access to the record are entitled to refuse to appear at the appeal hearing until the record is produced.
It is important to note that if the employer’s disciplinary code provides for an appeal process, the right to appeal must be afforded to an aggrieved employee, unless they waive this right. This internal appeal process should be fair and adhere to the rules of natural justice. The chairperson of the appeal process should not have been involved in the initial hearing in any way.
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