The South African labour market is rightly regarded as highly regulated. This view is affirmed in the World Economic Forum’s Global Competitiveness Report of 2015/2016 – in general, restrictive labour regulations is indicated as the most problematic factor for doing business in South Africa. The report rates South Africa 138th out of 140 countries in terms of hiring and firing practices, 127th for pay and productivity and 140th in terms of cooperation in labour-employer relations. It is clearly crucial for every employer to continuously comply with labour legislation.
A disciplinary code is vital to ensure that there are clear rules and procedures in the workplace to be followed by employees. When these rules and procedures are not followed the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing.
Why must a disciplinary hearing be held?
A disciplinary hearing must be held to ensure that a fair procedure is followed as well as to ensure that there is substantive reason for the employee to be dismissed. It is also of the utmost importance that an employee must be given the opportunity to present his case and to call witnesses.
Steps to follow to ensure a fair procedure and substantive fairness:
- Issue the employee with a notice to attend a disciplinary hearing. On the notice the employer must state the date, time and place where the hearing will take place. The notice must also contain a detailed description of the charges brought against the employee, including the date, time and description of the incident(s). We advise employers to provide the employee with 48 hours’ notice of the hearing, excluding weekends and public holidays, to allow the employee to prepare for the hearing.
- Have the hearing on the date and time proposed. Even if the employee does not attend the hearing the employer should proceed to present the evidence to the chairperson. The chairperson must determine if the employee had sufficient notice of the hearing and if the employee is absent with a valid reason or not. At the end of the hearing the chairperson will make a recommendation to the employer to either dismiss the employee or not.
- During the hearing the chairperson will ask the employee to plead guilty or not guilty to the charges brought against him.The employer will then present his case by presenting evidence and calling witnesses. The employee is then allowed to present his case and cross examine the evidence presented by the employer. Thereafter the employer may cross examine the employee’s evidence and witnesses. At the end of the hearing both parties will make closing arguments.
- The chairperson must make a finding of guilty or not guilty. Thereafter the employer will be asked to present aggravating factors and the employee mitigating factors. The chairperson will then determine the sanction to be imposed on the employee. If the chairperson determines dismissal to be the appropriate sanction the employee can be dismissed with immediate effect.
Should a hearing be formal or informal?
A hearing can be formal or informal, but it is essential that the employer must be able to prove that a hearing was held. Therefore our advice is always to have a formal hearing because then the employer can ensure that all the paperwork is in order if the matter proceeds to the CCMA.
Who can be the chairperson of the hearing?
The chairperson of a hearing should be an objective and impartial third party to the matter, preferably with knowledge of labour law procedures and requirements. We always suggest asking a legal representative from an employers’ organisation. If you don’t have an impartial person on the premises you can ask a neighbour, if he/she has sufficient knowledge of the procedures to follow. It’s important to prove at the CCMA that the chairperson wasn’t bias.