Disciplinary hearings are formal processes used by employers to address alleged misconduct or poor performance by employees. The purpose of a disciplinary hearing is to determine whether the employee’s behaviour or performance warrants disciplinary action, and if so, what the appropriate sanction should be.
Disciplinary hearings in South Africa are governed by, inter alia, the Labour Relations Act (LRA) and the Code of Good Practice on Dismissal. These laws set out the rights of employees who are subject to disciplinary action and outline the procedures that parties to a disciplinary hearing must follow.
Employees who are subject to disciplinary action have certain rights that are protected under South African law. These include:
- The right to notice: Employers must give employees what is considered as reasonable notice of the disciplinary hearing and the allegations against them.
- The right to be heard: Employees have the right to respond to the allegations made against them and to present evidence in their defence.
- The right to representation: Employees may be represented by a trade union representative or a colleague at the disciplinary hearing.
- The right to an interpreter: If an employee is not fluent in the language used at the hearing, he/she has the right to an interpreter.
- The right to appeal: Depending on the employer’s policies, employees may have the right to appeal the outcome of the disciplinary hearing.
A number of parties would be present at a formal disciplinary hearing. It is important to know the role that each plays as well as what is expected of them. These parties include the following:
- A chairperson (preferably independent): The chairperson should be unbiased and impartial and have no knowledge of the case prior to the hearing. This person will facilitate the entire hearing, and it is their role to ensure that it is conducted in an orderly, fair, and objective manner.
- The employer/complainant: This party must lead and submit evidence and call witnesses to prove the employee’s guilt. The employer must provide the chairperson with the company’s disciplinary code and ensure that the matter had been properly investigated in order to prove that the employee is guilty on a balance of probabilities.
- The accused employee: In order to give full effect to the audi alteram partem (“listen to the other side”, or “let the other side be heard as well”) rule, an employee must be given the opportunity to be heard. The entire purpose of a hearing is to allow an employee who is allegedly guilty of misconduct, an opportunity to defend himself/herself against the charges. The accused employee will be afforded the opportunity to lead evidence and call witnesses in defence of the charges. Once the employer/complainant has made their statement and called witnesses, the employee will be afforded an opportunity to cross-examine the employer/complainant and their witnesses. This is to familiarise the chairperson with the employee’s side of the case.
- The employee’s representative (if required): An employee facing a disciplinary hearing has the right to be represented or assisted at the hearing either by a fellow employee or by a shop steward. While representation by an external person is not a right, this should not simply be denied without affording the accused employee the opportunity to state the reason for requesting said representation. The representative will be afforded the opportunity to make representations on behalf of the accused employee and to cross-examine evidence and statements submitted.
- An interpreter (if required): An employee facing a disciplinary hearing has the right to an interpreter who will translate all proceedings in the language as requested by the employee. It is important to note that an interpreter will only be fulfilling the role of a translator and will not be allowed to testify in the hearing.
Disciplinary hearings can be a stressful experience for employers and employees. It is important to understand rights and obligations, as well as the procedures that apply. Affording each party the explicit right to be heard and being fully aware of each party’s role in a disciplinary hearing, will support a fair procedure.
