Understanding the Disciplinary Hearing Process
Introduction:
A disciplinary hearing is a critical process that employers must conduct to investigate allegations of misconduct against an employee.
The purpose of a disciplinary code and procedure is to regulate standards of conduct of employees within a company or organisation.
The aim of a workplace disciplinary code is to provide mechanisms to correct unacceptable behaviour and to create certainty and consistency in the application of discipline. Disciplinary procedures need to be fair.
Disciplinary procedures may also be included in a collective agreement.
There is a difference between disciplinary action and counselling.
Counselling will be appropriate where the employee is not performing to the required standard or is not aware of a rule regulating conduct and/or where the breach of the rule is relatively minor and can be condoned.
Disciplinary action will be appropriate where a breach of the rule cannot be condoned, or where counselling has failed to achieve the desired effect.
Before deciding on the form of discipline, management must meet the employee in order to explain the nature of the rule s/he is alleged to have breached.
The employee should also be given the opportunity to respond and explain his/her conduct.
This guide aims to provide employers with a step-by-step approach to conducting disciplinary hearings effectively and fairly.
FORMS OF DISCIPLINE:
Disciplinary action can take a number of forms, depending on the seriousness of the offence and whether the employee has breached the particular rule before.
The following forms of discipline can be used (in order of severity):
- Verbal warning;
- Written warning;
- Final written warning;
- Suspension without pay (for a limited period);
- Demotion, as an alternative to dismissal only; or
- Dismissal.
The employer should establish how serious an offence is, with reference to the disciplinary rules. If the offence is not very serious, informal disciplinary action can be taken by giving an employee a verbal or written warning.
The law does not specify that employees should receive any specific number of warnings, and dismissal could be an appropriate sanction for a first offence in the case of serious misconduct, such as gross dishonesty, assault and gross insubordination.
Employers should however apply progressive disciplinary measures for offences that are not serious enough for dismissal for a first offence.
Depending on an employer’s policy, written warnings will usually remain valid for 3 to 6 months, and final written warnings for 12 months.
A warning for one type of contravention is not applicable to another type of offence. In other words, a first written warning for late-coming should not lead to a second written warning for insubordination.
Progressive discipline means that an employee who commits the same or similar offence after receiving a disciplinary sanction should be subject to the next level of disciplinary action.
Preparing for the Hearing:
1.1. Record Keeping:
- Ensure that the full proceedings of the disciplinary hearing are recorded in writing in detailed minutes. This is crucial for a fair and transparent process.
1.2. Providing Copies of Minutes:
- Both the complainant and the respondent are entitled to receive a copy of the minutes.
- If both parties agree, the hearing may be tape-recorded for accuracy.
1.3. Representation of the Respondent:
- The respondent (accused employee) has the right to representation by a fellow worker from their place of work.
- Legal representation is only allowed if the employer agrees to it.
The Hearing Process:
2.1. Participants:
- The key participants should be present, including the Chairman, complainant, respondent, respondent’s representative, and an interpreter if needed.
2.2. Recording Details:
- The Chairman can save time by recording essential details before the hearing, such as the date, time, venue, and names of participants.
- Verify that the respondent received a copy of the Notice of Disciplinary Hearing and had sufficient time to prepare their defense.
2.3. Chairman’s Role:
- The Chairman should introduce themselves and explain their role in maintaining order and conducting the hearing fairly.
- Emphasize that abusive or insulting behavior will not be tolerated.
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2.4. Plea to Charges:
- The respondent should understand the charges against them and plead guilty or not guilty to each charge separately.
- If the respondent pleads guilty, continue with the hearing to assess all evidence.
Presenting the Complainant’s Case:
3.1. Evidence in Chief:
- The complainant’s witness should be called and asked to state their name, occupation, and position in the company.
- The witness’s written statement, if available, should be presented and confirmed by the witness.
- The witness should provide their version of events, and the complainant may ask clarifying questions.
3.2. Cross-Examination:
- The respondent or the Chairman can cross-examine the witness to test their credibility and gather additional information.
3.3. Questioning Other Witnesses:
- The complainant can call other witnesses to support their evidence, and the respondent can question them.
Presenting the Respondent’s Case:
4.1. Respondent’s Evidence in Chief:
- The respondent can now present their version of events and call their witnesses, if any.
- Similar to the complainant’s case, witnesses will be questioned, and cross-examination can take place.
Concluding the Hearing:
5.1. Final Comments:
- After all evidence is presented, the Chairman asks if the respondent wishes to add anything or raise any points.
- The hearing is then adjourned to allow the Chairman to study the minutes and evidence.
5.2. Verdict and Sanction:
- Based on the evidence presented, the Chairman will make a finding of guilty or not guilty.
- If found guilty, the Chairman will determine an appropriate sanction.
- The respondent will be informed of the outcome in writing.
5.3. Appeal Process:
- The respondent has the right to appeal the decision within seven days if they are dissatisfied with the outcome.
- An appeal hearing will be conducted by a different Chairman, and a verdict will be delivered afterward.
Conclusion:
Conducting disciplinary hearings requires meticulous preparation, adherence to fair procedures, and impartiality by the Chairman. Following this guide will help employers navigate the disciplinary process effectively, ensuring a fair resolution for all parties involved.
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