The Minimum Requirements for a Fair Disciplinary Hearing

The Labour Relations Act 66 of 1995 and the new Code of Good Practice on Dismissal requires disciplinary action against an employee to be substantively and
procedurally fair. The Labour Courts and the Code of Good Practice acknowledge
that a workplace disciplinary hearing is not a court of law and therefore, a rigid or
inflexible disciplinary procedure is not required.

It is important to note that disciplinary action includes dismissal and all penalties short of dismissal, such as warnings. To ensure procedural fairness a disciplinary hearing must always be conducted. In other words, there must always be compliance with the audi alterem partem rule that is that an employee must always be given the opportunity to state his/her defence.

From a practical point of view, employers may conduct an informal disciplinary hearing for trivial misconduct e.g. late coming and a formal disciplinary hearing for more serious misconduct. As a guideline, it is advisable to conduct a formal hearing where the misconduct in question is serious enough to warrant a final written warning or dismissal.

The following are the minimum requirements for a fair informal disciplinary hearing.

Firstly, employees must know what the allegation or charge against them is so that they can defend themselves. This can be verbally explained at the start of the hearing. Secondly, the employer must present its evidence confirming that the employee committed the misconduct in question. Thirdly, the employee must be given the opportunity to defend himself/herself against the allegations and present any evidence in support thereof. Fourthly, the supervisor or manager chairing the hearing must make a fair decision as to whether the employee is guilty of the misconduct. In other words, the chairperson must give due consideration to all the facts and circumstances and then make a decision on a balance of probabilities as to whether the employee is guilty or not guilty. Fifthly, if the employee is guilty the chairperson must impose a fair penalty i.e. a penalty that fits the ‘crime’.

The following are the minimum requirements for a fair formal disciplinary hearing.

Firstly, an employee should receive a written notice of the disciplinary hearing which states the charges in clear and precise language. The notice must also include the date and location of the hearing, that the employee may call witnesses and may be represented by a shop steward or fellow employee. To ensure fairness, the employer must allow the employee adequate time to prepare for the hearing, usually a minimum of 2 working days. Secondly, the chairperson of the hearing must allow the parties the opportunity to present their case in the hearing, and the rule is that the employer must present its case first whereafter the employee presents his/her case. In this regard the Parties have the right to present their evidence, call relevant witnesses and cross-examine witnesses. Thirdly, the chairperson of the hearing must make a fair decision as to whether the employee is guilty of the misconduct by giving due consideration to all the facts and circumstances and then decide on a balance of probabilities as to whether the employee is guilty or not guilty. Fourthly, if the employee is guilty the chairperson must impose a fair penalty after considering mitigating and aggravating factors.

While these are procedural points to remember, it is vital that the hearing is also substantively fair.  Even if an employer follows a fair procedure, if the reason for the disciplinary action is not substantively fair, the disciplinary action, e.g. the warning or dismissal, will be unfair.