A disciplinary hearing is a formal process used by an employer to deal with issues relating to an employee’s work, such as misconduct, unacceptable or improper behaviour. The key to fairly address any misconduct is a professional and properly run disciplinary hearing. It is therefore essential that anyone tasked with chairing a disciplinary hearing ensures that the hearing is conducted in an equitable manner.
Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 CC changed the way in which a chairperson must consider the appropriateness of the sanction of dismissal. This has taken such great importance in determining of the fairness of sanction as to develop the concept of a two-stage inquiry:
· The first stage is the finding of guilt by the chairperson.
· The second stage is an inquiry into the appropriate sanction.
The procedure to be followed can be summarised as follows:
1. Parties are welcomed.
2. Accused is addressed by the chairperson, ensuring that fair process has been applied so far and that the employee’s rights have been upheld.
3. The accused is asked to plead to the charges brought before him/her.
4. The complainant presents his/her evidence and case, calling witnesses.
5. The accused cross-questions the complainant’s witnesses.
6. The complainant gets to re-examine the witness if needed.
7. The accused states his/her case and calls witnesses.
8. The complainant cross-questions the witnesses.
9. The accused gets to re-examine the witness if needed.
10. Closing Statements.
11. The chairperson makes his first decision about whether the accused is guilty.
• If the accused is not guilty – that is the end of the hearing.
• If the accused is guilty, then:
o The complainant presents aggravating statements.
o The accused presents mitigating statements.
o The chairperson makes a finding and gives judgement.
It sometimes happens that certain ancillary issues are raised at the commencement of the inquiry. These include issues such as a request for outside representation and postponements. The procedural aspects are often referred to as housekeeping and it is the chairperson’s duty to ensure that all procedural steps have been followed prior to start of the inquiry.
Chairing a disciplinary hearing is never an easy task. A fair procedure requires that the person chairing a disciplinary hearing must be unbiased, impartial, and have no prior knowledge of the case.
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