Practical Advice: Drafting Charges
Embrace Detail, Striking a Balance
- Emphasize thoroughness without excessive detail.
- Employ the code as a guideline.
- Common law serves as a fallback when the code is incomplete.
- Refrain from duplicating or splitting charges.
- Multiple charges can apply for a single incident, avoiding duplicate charges.
- Alternative charges are a viable option.
Defining “Fair Reason”
- The fairness of dismissal hinges on:
- Case specifics and circumstances.
- Suitability of dismissal as a penalty.
Guideline Test According to the Code
- Employers must set rules.
- Clear conduct standards must exist.
- Formal procedures aren’t mandatory for every rule breach.
- Reserve dismissals for serious misconduct or repeated offenses.
- Prior to imposing dismissal, consider mitigating factors.
- Consistency is key in applying dismissal as a penalty.
Addressing the Prospect of Dismissal Sanction
Presumption of Innocence & Suspension with Pay
- Dismissal may be warranted if warnings prove ineffective.
- Consider suspension with full pay if the offense’s gravity or risks justify it.
Suspending an Employee Pending an Enquiry
- Suspension is permissible if:
- Employee’s presence endangers business.
- Employee’s presence incites unrest.
- Employee’s presence hampers proper preparation for the hearing.
Notification for Enquiry Attendance
- Apply to all potential dismissals.
- Preferably read to the employee.
- Employee acknowledges by signature; refusal ≠ admission of guilt.
- In case of refusal, explain receipt proof.
- If still refused, credible witness’s signature.
- Retain a copy; provide the original to the employee.
- Rights include representation, prior notice, witness calling, cross-examination, evidence presentation, and mandatory presence.
Roles of Involved Parties
The Initiator / Prosecutor
- Conduct investigations, gather evidence, formulate charges, issue enquiry notice, present opening statement.
The Chairperson
- Impartial with equal/higher status to the complainant.
- No prior knowledge of charges.
- Facilitate a correct and orderly enquiry.
- Limited to clarifying questions.
The Employee / Employee Rep
- Present defense, state case, call and cross-examine witnesses.
- Allowed to caucus.
HR / IR Division
- Facilitate and advise.
- Ensure adherence to procedural guidelines.
- Advise on guilt, sanctions, consistency, etc.
Initiating Questions and Evidence Presentation
- Elicit witness evidence via questions.
- Employ questions from reps; witnesses answer.
- Commence with undisputed facts.
- Exercise care and clarity in framing questions.
- Extract necessary evidence during examination.
- Avoid leading questions, hearsay, irrelevance, and opinions unless expert.
Cross-Examination
- After rep’s questioning, challenge witness.
- Gather further relevant facts.
- Test witness credibility.
- Allow leading questions.
- Discredit or highlight contradictions.
- Share one’s case with the witness.
- Gather facts for other witness cross-examination.
Re-Examination
- After cross-examination, re-examine witness.
- Provide context, clarity, elaboration.
- Focus on matters raised during cross-examination.
- Avoid new evidence or issues.
- Questions limited to cross-examined matters.
Practical Advice: Cross-Examination
- Pose questions preventing evasion.
- Avoid arguing with witnesses.
- Address evasiveness cautiously.
- Cross-examine for gains.
- Employ patterns while avoiding predictability.
- Prevent witness confusion.
- Confirm understanding post-questioning.
- Actively listen; discourage witnesses from questioning.
In summary, when conducting disciplinary enquiries and crafting charges, meticulousness and fairness are crucial. Following guidelines, ensuring due process, and employing effective questioning techniques contribute to a just and accurate outcome.