A disciplinary hearing is an internal process where substantive and procedural fairness must be applied in all cases. The employer bears the burden of proof to establish guilt. Although the rules applied in a court of law and the rules for a disciplinary hearing are not the same, there are similarities. 

The matter of fairness

• Substantive fairness look at the consequences of an employee’s misconduct in the workplace.
• Procedural fairness relate to addressing the misconduct committed, i.e. a disciplinary hearing or the issuing of a warning.

Fairness in hearings

Certain steps must be followed in order to make a disciplinary hearing substantively and procedurally fair. An employer elects an initiator to present the case of the employer at the internal disciplinary hearing against the accused employee. The initiator may be an employee or the owner of the company. The duties of an initiator is a stringent task, because it rarely happens that an employee is caught with their hand in the cookie jar. Thus, an initiator has to find the evidence in order to prove the case against an employee.

After an initiator has finished interviewing the accused employee and possible witnesses, and finished assessing what evidence to use prior to a hearing, it is determined which evidence (if any) can be given to the accused employee prior to the hearing. The most important thing to remember, is that the accused is still innocent until proven guilty.

Unfortunately, legislation is silent on this matter. We do, however, have the courts and the (CCMA) Commission for Conciliation, Mediation and Arbitration to turn to for guidance.

Case study

In NUMSA obo Galada & Others and Eskom (2000) the applicants claimed that the internal disciplinary hearing was procedurally unfair as they were not furnished with documentary evidence prior to the hearing. The Commissioner stated the following with regards to the issue and claimed:

[“The question that arises, however, is whether or not employees have the right to receive such documentary evidence in advance of the enquiry. In this regard, it is my view that employees do not have such an absolute right and that there is no unfairness in that. Provided, of course, that they are subsequently given a ‘reasonable’ or ‘adequate’ opportunity to examine and evaluate the documentary evidence during the course of the enquiry itself.

What such a reasonable opportunity would actually be, depends entirely on the nature and amount of the evidence as well as perhaps its role in the employee’s case. Of course, it may be more sensible in appropriate cases, like the present ones to give such documentary evidence to employees before the start of the enquiry for the sake of avoiding inevitable delays or postponement. But that does not mean, bearing in mind the stated above, that there is any unfairness or prejudice to employees if this is not done.

In essence, as an initiator you need to evaluate the evidence and the detriment as well as possible delays which may be caused if the evidence is not given to the accused employee. If you are going to use documents full of evidence which will cause a delay in the hearing it is advised to give the accused employee an opportunity to peruse it at your office prior to the hearing to avoid delays in the process.”]

Progressive discipline is the system all employers should adopt in the workplace and refer to a gradual process taking place in stages.

The progressive disciplinary system

For first or minor infractions, the courts have endorsed the concept of corrective or progressive discipline which is a system of escalating responses to misconduct by the employer and which is intended to correct the behaviour of the employee.

The stages of progressive/corrective discipline in a workplace are as follows:

• Counselling or a verbal warning;
• A written warning;
• A final warning;
• Termination/suspension or demotion.

A typical progressive disciplinary system begins with a verbal warning and culminates with a final written warning. This may lead to the employee’s termination should the employee thereafter commit the same or similar offence. It should be noted that every step in the disciplinary process is progressively more serious.

Minor infractions may include

• Absence without leave;
• Failure to inform your employer of your absence and expected date of return;
• Reporting late for duty;
• Leaving the workplace early or deserting the workstation and
• Failure to return to work timeously after lunch/tea intervals etc.

The list is by no means exhaustive. Penalties for these type of offences increase in severity upon repeated occurrences. It is generally not appropriate to dismiss an employee for a first offence, except if the misconduct is of a serious nature and of such severity that it makes a continued employment relationship intolerable for both the employer and employee.

Serious misconduct may include

• Dishonesty;
• Wilful damage to the property of the employer;
• Wilfully endangering the safety of others;
• Physical assault on the employer, a fellow employee, client or customer and
• Gross insubordination.

Each case should however, be judged on its own merits.

The disciplinary procedure and code

The company’s rules are set out in a disciplinary code which varies according to the nature of each business. These rules of discipline must be certain, and must be applied consistently amongst all employees. It is also a requirement that the standards of conduct are made available to employees in a manner that is easily understood. It should be clearly defined so that employees are aware of what action to expect when committing offences.

Rules and procedures in a company

Rules and procedures are one thing which makes or breaks an organisation. It is the rules which define how the culture within the company develops. If there are no rules to follow, there would be chaos and less than expected output. The organisation usually identify pre-defined rules and policies to ensure the business operate smoothly. It is a set of rules defined by the organisation that need to be followed by the employees at the workplace.

(Incapacity: poor work performance or ill-health/injury)

Employers have to deal with incapacity due to ill-health, poor performance and misconduct. It is imperative to clearly understand the distinction between these two issues otherwise a wrong procedure could be followed and wrong actions/decisions could be made with far reaching repercussions.

Incapacity due to ill health

Refers to a situation where an employee is unable to carry out or perform their contracted obligations due to an illness or injury. Incapacity on the grounds of ill health maybe temporary or permanent.

Poor performance

Is defined as ‘when an employee’s behaviour or performance might fall below the required standard’.

Misconduct

Involves intentional or negligent conduct (such as not caring enough to be on time to work), whereas poor performance is actually doing the job poorly. Being late isn’t doing the job. … The allegation of misconduct should refer to a breach of a rule, or a clause of the employer’s code of conduct that creates an offence, unless the offence is one which all reasonable persons would recognise as such.

Incapacity is the inability of an employee to perform work to the employer’s established standards of quality and quantity due to ill-health or injury. This is based on the fact that the approach for dealing with incapacity is different from the approach for dealing with misconduct. The employer cannot simply dismiss the employee with an incapacity problem since the employee is facing a situation beyond his control.

Therefore, if a dismissal is to occur as a result of incapacity, the employer must follow a correct and fair procedure. Dismissal must be substantively and procedurally fair. Section 10 and Section 11 of Schedule 8 of the Labour Relations Act, 66 of 1995 as amended, provides clear guidelines that must be followed to ensure that a fair procedure is followed.

Normally, every job has a performance standard which is laid down by the employer and that constitutes an employer’s prerogative. Therefore, employees are expected to meet the performance standards set for their jobs. It is important and advisable that employers engage employees to understand what is expected of them with regards to work performance.

If a problem of incapacity is noticed by the employer, he must

• Notify the employee thereof and invite him or her to a meeting/consultation to find out what the problem and the nature thereof is;
• He must give the said employee sufficient time to prepare for the meeting/consultation (at least 48 hours);
• During the consultation the employee must be given an opportunity to explain why he is not meeting the required performance standards;
• He can be represented by a fellow employee or a representative from a recognized trade union, if he so wishes;
• The atmosphere must be conducive to enabling the employee to express him and
• Consider the availability of any suitable alternative work.

The employer is obliged to engage the employee in good faith in a process as a measure to address the incapacity and to minimise the impact and effects thereof. In fact, counselling sessions play a crucial role in attending to problems of incapacity.

If dismissal is to occur, it should be the last resort where this process of consultation has failed. As has been mentioned above, section 10 and 11 of the Code of Good Practice: Dismissal, provides the guidelines that must be followed by an employer should an employee become incapacitated, temporarily or permanently through ill-health or injury. Section 10 and 11 referred to herein is normally encapsulated in employers’ disciplinary codes and procedures.

It is of utmost importance therefore, that managers and supervisors clearly understand the distinction between incapacity/poor work performance and misconduct to appropriately deal with the problem as and when it arises [Refer to Sun Couriers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2002) 23 ILJ (LC).]

However, in the event that incapacity/poor work performance relates to a managerial employee the approach differs. By virtue of his position (senior employee), he ought to know if he is not meeting the required performance standard. A senior employee’s job is like that of  a pilot and demands a high degree of professional skill where a small deviation from the required standard could have costly and disastrous consequences.

[Refer to New Forest Farming CC v Cachalia & others (2003) 24 (LC); Department of Home Affairs and General Public Service Sectoral Bargaining Council Z Mdladla and KR Malatji (2013) (LC); and Palace Engineering (Pty) Ltd v Thulani Ngcobo, Commissioner Shaan Govender N.O., and Commissioner for Conciliation Mediation and Arbitration (2014) [LAC).]

In such cases, deviation from the required standard could constitute misconduct, requiring appropriate proceedings to be instituted in accordance with the employer’s disciplinary procedure and code.

Prima facie evidence

It is a legal term used to mean that you have enough evidence to prove something by pointing to some basic facts, but that your proof can be refute.

Circumstantial evidence

It is evidence that prove a fact by proving other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact at issue.

Corroborating evidence

This is evidence that tends to support a proposition that is already supported by some initial evidence, therefore confirming the proposition.

Rules when using a document as evidence

Three rules apply when using a document as evidence at the CCMA. It is important to note that these rules of evidence also apply when presenting evidence at internal disciplinary hearings.

Rule 1. It must show that whatever is in the document is relevant to the case

Example:

The employee says his dismissal was procedurally unfair. He says he did not know what the allegations were before the hearing. The notice sent before the hearing needs to be shown, which shows the allegations, as evidence. It is relevant evidence because the employee’s arguing procedural fairness. To prove a case it has to be shown that the procedure was fair and that the employee was given notice with the allegations.

The other party must admit that the document is authentic and not a fake. If the other party would not admit it is authentic, it has to be proven.

This can be done through a witness who can confirm it is real because he:

• Was he the one to write it up;
• It is his signature on it, or
• Was a witness to it.

Example:

A manager draws up and signs the notice to attend a hearing. He can say the document that the employer representative has as evidence is the actual one he gave to the employee.

Rule 2. The original document must be at hand and not just a copy

Exception:

A copy can be used if the original is not available, but it will have to be explained why it is not available if the employee says it is not authentic.

Rule 3. Copies need to be made

The original must be given to the Chairperson, a copy to the other party, a copy for the witness should witnesses be called to testify and a copy to be kept by the employer representative.