The chairperson of a disciplinary hearing determines the guilt or innocence of an accused employee. This is normally done after analysing and evaluating the evidence, hopefully in compliance with the law of evidence’s principles.
In doing so, the chairperson must not only eliminate all subjective emotional prejudices, but must also carefully and correctly analyse the charge(s) and its elements. The importance of correctly worded and legally sound charges plays a very important role in ensuring a substantively correct and fair decision on guilt.
The chairperson must evaluate whether sufficient evidence exists to substantiate a finding of guilt, on a balance of probability.
This is obviously not the situation when the charges are originally drafted, when only limited and untested information, emanating from the pre-disciplinary investigation, exists. Too often a “guilty as charged” verdict is made, leaving the accused dumbfounded as to how such a finding could be made in the absence of sufficient and/or admissible evidence.
Often the in-house chairperson’s inadequate labour law knowledge and inability to grasp the basic principles of evidence becomes evident when someone is called in to do damage control.
Usually senior line management made the decision at the onset that the employee “must be dismissed”, “does not fit in anymore”, “must take the fall”, but “let’s be seen to go through the motions”!
Chairpersons make many mistakes, the most blatant example being that of employees found guilty, without a shred of evidence. The more frequent mistakes by chairpersons emanate from not only an inability to analyse the charge(s) and its elements, but also not comprehending the complexities of certain legal terms.
For example, let’s consider a charge of “fraud” being brought against an employee due to “monies being lost/unaccounted for”. In order to prove “fraud” an employer should consider, for example:
- Whether the money is really missing;
- Wether the accused employee was at fault;
- Whether the accused employee took the money; and
- Whether the accused employee tried to hide his/her actions.
Was it really “fraud”, as charged, or was it actually “negligence” or was it “gross negligence” or “dereliction of duty” or actually only “theft”, as not charged? Or they find the employee guilty, not of fraud, but on some other charge, for example, “theft”, “negligence”, etc – not what the employee was charged with.
An accused employee cannot be found guilty on a charge he/she has not been charged with. That would also be procedurally unfair.
Another example where there is little comprehension of legal meaning and complexity is where a charge of “theft” is confused with “unauthorised possession”.
A charge of “theft” will also require proof that the accused had the intention to steal. How will the employer prove that an employee stole company property by, for example, having the company property in his/her pocket while still on company premises? Although a charge of “theft” is used frequently, it involves very complex legal principles, and consideration of the circumstances, before an employee should be found guilty of theft.
These practical examples highlight the importance of alternative charges for the same type of offence. This provides options to choose from and, based on the evidence, the ability to make a more accurate and substantively fair decision on guilt.
However, “and/or” charges could also add to confusion in that it could become very legalistic. Here is an example “detailing” a single type of offence related to racism:
“The allegation(s)/charge(s) against you are that you: acted in an unlawful and/or unauthorised manner; and/or committed an act(s) of gross misconduct and/or acted in an unjustifiable manner; and/or acted in a manner contrary to your employment contract; and/or committed an act of racial abuse and/or racism; and/or used insulting and/or abusive language; and/or failed in and/or neglected and/or grossly neglected your duty(ies) and/or the execution of your duties; and/or (another six “and/or” charges)”
This article is not on how to write proper charges; the chairperson will have a whole list of charges and elements to consider. The Labour Relations Act categorises offences into two broad categories: conduct and performance. In the above example the charges could have been shortened substantially. The chairperson cannot just give a verdict of “guilty as charged”, as there were so many charges/sub-charges and multiple elements.
For example, was the accused guilty of misconduct or gross misconduct, was it racial abuse or racism or both, etc.
This highlights the importance of taking time and effort to formulate the charges properly and correctly. The facts and evidence presented by the employer representative (initiator) at the disciplinary hearing must be relevant and must support the charges. Thorough preparation, including the preparation of witnesses, may determine a successful outcome or not.