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Home Wrong behaviour Discipline Fair disciplinary hearings are not optional

Fair disciplinary hearings are not optional

Ivan Israelstam
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The Labour Relations Act (LRA), via its Code of Good Practice: Dismissal makes it clear that, while the disciplinary process can be informal, the employee should nevertheless be given a proper opportunity to prepare and present his response. While it is not compulsory for the disciplinary hearing to be formal, section 188(1)(b) of the LRA requires the employer must prove that a dismissal was procedurally fair. Also, the code does grant the employee certain procedural rights.

The Labour Relations Act (LRA), via its Code of Good Practice: Dismissal makes it clear that, while the disciplinary process can be informal, the employee should nevertheless be given a proper opportunity to prepare and present his response. While it is not compulsory for the disciplinary hearing to be formal, section 188(1)(b) of the LRA requires the employer must prove that a dismissal was procedurally fair. Also, the code does grant the employee certain procedural rights.

In a disciplinary hearing, the employee has the right to be:

  • Informed as to what the charges are: Proof of this would be a written charge sheet, signed by the accused employee as proof of receipt.
  • Given a proper opportunity to prepare: Proof of this would be a written notice of hearing given to the employee, receipt for which has been signed by the accused employee well in advance of the hearing date.
  • Heard and present a defence: Proof of this would be minutes of the disciplinary hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses and cross-examine evidence brought against him.

Consequently, when records such as minutes, hearing notices and charge sheets are introduced, the disciplinary process is formalised. In my view, this conversion is reinforced by the need to separate the complainant role from the presiding officer role to eliminate bias.

Failure to hold disciplinary hearing is not advised

In the case of Passenger Rail Authority of South Africa v Molepo [2014] 5 BLLR 468 (LC):

  • A senior member of management was told by the CEO that, since he was no longer interested in working for the company, his services would be terminated.
  • This communication came after the senior manger had been placed on 'special leave' while his work performance was being investigated.
  • The CCMA found that the manager had been unfairly dismissed and reinstated him with full retrospective effect. The company contended that the manager had repudiated his contract, and had not been dismissed.
  • The court found that the manager had tendered his services throughout and that the employer's legal counsel had expressly conceded that the respondent had been dismissed.
  • Since the respondent had led no evidence to justify the dismissal, the CCMA commissioner further found that the finding that the dismissal was substantively and procedurally unfair was unchallengeable. The appeal application was dismissed.
  • The fact was that the entire dispute arose from the CEO's high-handed actions motivated the court to order the CEO to pay the costs of the appeal application out of his own pocket.

The employer's onus to prove that all the employee's rights have been complied with makes a formal and expertly controlled disciplinary hearing essential. This holds true even if the only procedural rights an employee has are those few specifically provided for in the code of good practice. While the officials who carry out the corrective procedure do not need to be lawyers, they do need to be well skilled in disciplinary hearings and procedures.




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