DISCIPLINARY HEARINGS IN SOUTH AFRICA

WHAT IS A DISCIPLINARY HEARING?

Disciplinary hearings are structured, formal processes that employers use to address allegations of misconduct or underperformance by employees. Although these hearings can feel intimidating for both employers and employees, they serve an important role in ensuring fair, consistent workplace standards. In South Africa, the process is carefully regulated to safeguard the rights of all parties involved.

The primary objective of a disciplinary hearing is to assess whether an employee’s conduct or performance has fallen below the required standard and, if so, to determine an appropriate corrective measure. This can range from issuing a warning to, in more serious cases, dismissing the employee. However, the overarching aim is not only to address individual instances of misconduct but also to uphold and promote fairness and transparency in the workplace.

Key principles from the LRA and the Code of Good Practice include:

• Right to Fair Procedure: Employees are entitled to a fair and impartial hearing. This includes the right to be informed of the allegations against them, adequate time to prepare, and the opportunity to present evidence and call witnesses.
• Right to Representation: Employees may choose to be represented by a colleague or union representative. Legal representation is generally not permitted unless the nature of the hearing justifies it.
• Right to an Impartial Chairperson: An impartial chairperson should oversee the hearing to ensure fairness and objectivity in decision-making.
• Requirement for a Notice of Hearing: Employers must provide employees with a written notice of the hearing, detailing the alleged misconduct or performance issues and outlining the process.

Substantial and procedural fairness with regards to Disciplinary Hearings in simple terms means that the reason must be justifiable, ample notice must be given, service of such notice must be sufficient, rights of the employee and witnesses must be observed in the hearing, an opportunity to adduce and challenge evidence must be given, an unbiased approach by the Chairperson of the hearing must be intact and restraint from all the parties involved must be exercised.

The Process of a Disciplinary Hearing

The disciplinary hearing process generally follows these steps:

1. Preparation and Notification: The employer prepares the case, gathers evidence, and provides the employee with a notice of hearing, usually with sufficient time (at least 48 hours) to prepare.
2. Presentation of Evidence: During the hearing, the employer presents evidence of the alleged misconduct or poor performance. The employee then has the opportunity to respond, present their own evidence, and call witnesses if necessary.
3. Cross-Examination: Both parties have the opportunity to cross-examine witnesses and challenge evidence presented.
4. Deliberation and Decision: After considering all evidence, the chairperson makes a decision based on the findings. If the employee is found guilty of misconduct, the chairperson decides on an appropriate sanction, which could range from a warning to dismissal, depending on the severity.
5. Outcome Notification: The employee is informed of the outcome and has the right to appeal if they believe the hearing was conducted unfairly or the outcome was unjust.