Unit 3 - Disciplinary Hearings Flashcards
1
Q
What is the aim of the disciplinary code?
A
To promote disciplined behaviour among all employees, which is to the advantage and safety of every individual, as well as for the promotion of the company’s aims.
- It is designed to promote the standards of the company, and not to punish employees.
- The disciplinary code and procedures are applied in every case where discipline should be enforced.
2
Q
Discuss ‘progressive discipline’
A
- In as far as possible, disciplinary steps will only be taken to maintain standards after informal counsel and verbal warnings did not succeed in achieving the desirable results.
- If an e/e breaks the terms of his contract or if his actions are unacceptable, the e/r will advise him before taking formal disciplinary steps.
- [See counsel part in previous unit]
- The e/r should be able to prove that he acted fairly in a substantive and procedural manner.
3
Q
Even though Sched 8 of the LRA implies an informal procedure, why should an e/r conduct a hearing according to similar standards to the CCMA?
A
Since the e/e will likely refer the matter to a BC or the CCMA.
- The more formal and stricter form will reduce the chance of the e/r being penalised for being procedurally incorrect.
4
Q
What must a Notice of the hearing set out? (7)
A
- The e/e must be given written notice to attend the disciplinary hearing. The notice should specify:
a. The charge to be faced
b. The date, time and place of the disciplinary hearing
c. That the e/e will be allowed representation by a fellow e/e or shop steward of his choice at the hearing, and that he is responsible for arranging such representation if he wishes to exercise this right
d. That the e/e will be allowed to call witnesses at the hearing and that he is responsible for arranging the presence of such witnesses
e. That an interpreter will be provided should the e/e request the services of one
f. That a failure on the part of the e/e to attend the hearing without a valid reason may be regarded as a waiver of his right to such a hearing, in which case the hearing will proceed in his absence
g. Whether or not the e/e will be suspended on full pay pending the outcome of the hearing
5
Q
Discuss ‘the charge to be faced’
A
- It is not necessary to present the details of the charge in excessively technical legal language
- But, sufficient detail must be given to enable the e/e to know the nature of the act or omission and the date on which it occurred so that he can prepare a defence
- Giving a brief description of the facts that gave rise to the charge not only enables the e/e to prepare his defence, but also allows the chairperson to make any finding which is consistent with the facts when they are proven.
6
Q
Discuss ‘the date, time and place of the hearing’
A
- The notice of hearing should give the e/e sufficient time to prepare his defence
- This requirement must be balanced against the conflicting requirement that the e/e is entitled to have the hearing take place within a reasonable time after the alleged offence
- Two working days’ would usually be sufficient
7
Q
Discuss ‘the e/e must be allowed representation’
A
- Ito the Act the e/e is entitled to be represented y a fellow e/e or “trade union rep” of his choice.
- It is important to note that in the case of an e/e who is not a shop steward, a “trade union rep” is a show steward and not a full-time official of the TU.
- Representation by lawyers, consultants and union officials need not be allowed unless the co.’s internal disciplinary code provides otherwise.
- A request to a chairperson for legal representation should be considered in terms of Rule 25 of the CCMA Rules
- If the e/e being charged is a shop steward, the proposed disciplinary proceedings must be discussed with the union, and a union official may be allowed to represent the shop steward.
8
Q
Discuss ‘witnesses’
A
- The e/e may call any witnesses he wishes whose evidence is relevant to the charges he has to face.
- This includes non-employees, such as clients.
9
Q
Discuss ‘interpreter’
A
- The company must, at the request of the e/e, arrange for an interpreter to be present at the hearing in order that the e/e may give evidence in the language with which he feels most comfortable.
10
Q
Discuss ‘failure to attend the hearing’
A
- If the e/e fails to attend the hearing at the specified time without prior provision of an acceptable reason, the hearing may proceed in his absence.
- But, before doing this, the chairperson should endeavour to ascertain the reason for the e/e’s non-attendance as well as the likelihood of the e/e attending the hearing if it is postponed for a few days.
- If this does appear likely, the chairman should postpone the hearing and arrange for a written warning to be delivered to the e/e that if he should again fail to attend, the hearing will definitely proceed in his absence.
11
Q
Discuss ‘suspension on full pay’
A
- If the alleged offence is of a very serious nature or the presence of the employee would hinder the company’s investigation of the matter, the e/e may be suspended on full pay pending the outcome of the hearing.
- Recent developments indicate that the audi alteram et partem principle should be applied before suspension, despite full payment of the employee.
- If the e/e requires access to the company premises to obtain documentation or other items necessary to enable him to prepare for the hearing, such access must be allowed but should be subject to supervision by a member of management while he is on the premises.
12
Q
Discuss ‘preparing for the hearing’
A
- In order to ensure that the hearing is fair/reasonable and that the co.’s case is presented in the best possible manner, a member of management should be tasked with preparing the case for the co. and presenting the case at the hearing.
- Successful preparation will include:
a. An information-gathering exercise during which all relevant dates, times and facts are gathered and then collated in chronological order.
b. Consulting with the witnesses that were identified and taking a brief statement from each of them.
c. From the above it will be apparent whether any additional charges should be added to the charge sheet and whether additional people should be charged.
d. Prior to the hearing all documentation that is to be used at the hearing should be bound in a file and two copies of the file made - to ensure the chairperson and the accused each have a copy.
13
Q
Discuss the chairperson of the hearing
A
- Must be impartial and not display bias in favour of the company
- Should be a member of management who was not involved in the investigation of the alleged offence
- Important implications of the fairness of the hearing:
a. The chairperson should not havr made his mind up prior to the hearing
b. He should not discuss the detail of the matter with the investigating managers or the offender
c. The chairperson may ask questions at the hearing, but only to clarify issues. It should not indicate that he has already come to a decision. - At conclusion, chairperson should adjourn the proceedings for sufficient time to allow him to consider all the evidence
14
Q
Discuss the findings of the chairman
A
- At the reconvened hearing the chairperson must advise the parties of his findings on the charges.
i. Not guilty of all charges
ii. Guilty of some charges, and not guilty of others
iii. Not guilty of the offences as charged, but guilty of a lesser related offense - If there is any finding of guilt, the chairperson should then request the e/e to address him on an appropriate sanction, or factors that would militate against sidmissal.
i. Length of service and clean disciplinary record
ii. Provocation
iii. Personal circumstances, such as sole breadwinner - After an adjounrment to consider these factors the chairperson should return and advise the hearing of his decision regarding sanction.
- The chairperson must then inform the e/e that his written decision will be available within a reasonable time.
15
Q
What is the normal sequence of events in a hearing?
A
- Chairperson will confirm with the e/e that he received a copy of the charge sheet and will read the charges to the employee, asking whether he admits or denies each charge
- The “prosecutor” or “initiator” will then give a brief outline of the co.’s case and proceed to call his witnesses to give their evidence. After each witness has given evidence, the e/e must have an opportunity to put questions to them.
- The e/e will then give a brief outline of his defence and proceed to call his witnesses to give their evidence. The co.’s representative must be afforded an opportunity to question each such witness.
- The e/e will then give evidence on his own behalf, outlining his version of the events that led to the charges against him. The co.’s rep then has an opportunity to put questions to the e/e.
- Both the co.’s rep and the e/e should then be given an opportunity to summarise their case, whereafter the chairperson will make a decision.
- The chairperson will require both the co.’s rep and the e/e to address him on the question of an appropriate sanction in the event if a finding of guilty.
- If the hearing is adjourned at any stage, the chairperson must ensure that all parties are clear as to the date and time upon which the hearing will reconvene.
