If an employee commits misconduct, the employer cannot just dismiss him. The employer needs to first hold a disciplinary hearing/enquiry. A fair disciplinary hearing gives the employee an opportunity to prove his innocence. If the hearing is not fair, the employee can refer an unfair dismissal dispute to the CCMA or appropriate Bargaining Council.
There are 6 requirements for a disciplinary hearing to be fair, otherwise an employee can accuse the employer of a procedural unfair dismissal. They are the following:
- The employee must be notified of the allegations against him using a form and language the employee can reasonably understand. The employee must be given at least 48 hours’ notice of a disciplinary or performance hearing.
- Hold the hearing before disciplinary action is taken to ensure the employee has an opportunity to challenge the evidence before a final decision is taken against him.
- Make sure the hearing follows as soon as reasonably possible after the incident in question, preferably not later than two to three weeks.
- Advise the employee in writing of the precise charge he is required to answer in advance of the hearing, otherwise the employee would not be in a position to prepare his defense. Prepare the allegations in precise, simple terms and in a way he can clearly understand what is going on.
- The employee should be present at the hearing. However, the hearing can proceed if the employee refuses to attend or participate without good cause or has absconded.
- The employee should be entitled to the assistance of a trade union representative or fellow employee to represent him in the disciplinary proceedings.
In light of a court decision in the case of MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani (2005) 2 BLLR 173 (SCA) there is a perception employees are entitled to legal representation in the hearing. This at present is not true. The general rule is even though an employer’s disciplinary code provides that an employee may only be represented in a hearing by a co-employee or a shop steward, the chairperson of the hearing has a discretion to allow legal representation if the employee requests it.
