Form J - Appropriate Procedure to be followed at a Disciplinary Enquiry

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(An enquiry should take place in the event that an employee's conduct may lead to dismissal or if a factual dispute exists).

The employee shall be notified in writing of the hearing. All alleged charges/ offences should clearly be described to properly inform the employee on the nature of the enquire. Notice shall be given at a reasonable time before the hearing, but not too late after the offence has been committed/discovered by the employer.

• The notice (letter) of the hearing should contain the following information (if possible, the parties should have consensus on the following):

• venue of the hearing;

• time of the hearing;

• specified charges (e.g. theft);

• give enough particulars of the offence to enable the employee to understand the charges;

• witness may be led. Witnesses should be either from within or outside the employer's ranks.

• the right to an interpreter (provide for an interpreter if language problems be expected).

• the employee has the right to be represented by a representative to assist the employee with preparation and to submit the case. Representation is restricted from within the employer's ranks.

Obtain a notice of receipt from the employer on the notice obtaining the above arrangements as this would serve as evidence at the enquiry (signature, date, time or receipt).

Make reservations for a venue (if necessary).

Confirm there arrangements with all relevant parties:

• the Chairperson

• witnesses (own)

• person instructed to see that a proper record is kept by a tape recording (if a record is kept by writing minutes of the hearing, such record should be precise)

• translator (if applicable)

• person acting as prosecutor on behalf of the employer whose duty is to lead the employer's witnesses.

Get all documents in order.

Get tape recording facilities (if this is the method decided on to keep record).

Make sure that everybody that was called upon to attend the hearing is present. Record such presence. Enquire from the employee if any objections exits against the chairperson elected to conduct the hearing and if a reasonable time was allowed to prepare for the hearing. If any objections are raised on these issues, attend hereto and make a ruling. If the objection is reasonable, act accordingly.

Step 2 : The charge(s)

Read the charge(s) out to the employee and enquire whether the employee understands it. The employee then responds to each charge separately by replying guilty/not guilty. If pleaded guilty, refer to Step 9 hereunder.

Step 3 : Procedure at the hearing

Explain the procedure that would follow. Confirm the employee's rights:

• to call witnesses

• to insist on a interpreter (if applicable)

• to cross examine witnesses called by the employer

• to be represented by a representative within the employer's ranks or a union representative (if applicable).

At this stage in the events, the employee should state whether enough time to prepare for the hearing and that no objection exists on the person selected to act as chairman at the hearing.

Step 4 : Employer's case against employee

• Call on witnesses (one at a time).

• The prosecutor starts asking questions.

• Afford the employee and/or the representative ample opportunity to pose questions to a witness.

• Repeat until all witnesses are called.

• Supporting evidence (documents, etc.) should be presented where applicable.
• Note: A witness is not allowed to ask questions.

Step 5 : Employee presents defence

• Afford the employee ample opportunity to present case, all witnesses and to submit supporting evidence (documents. etc.) where applicable.

• Any member of the hearing committee (chairperson) may pose questions to the accused or any witnesses.

Step 6 : Arguments

Afford opportunity to give argument. The objective is to allow the employee or the representative the opportunity to raise issues to be considered by the chairperson before deciding on the accused guilt.

Step 7 : Decision on guilty or not guilty

Adjourn the hearing and decide on the employee's guilt or innocence. The person conducting the enquiry must objectively, based on the evidence presented at the hearing, decide by himself whether the employee is guilty or innocent. It is not advisable to discuss the verdict with any higher rank in the organisation.

• He should make the finding on balance of probabilities.

• He should have regard to the trustworthiness of the witnesses and should be cautious to accept hearsay evidence (that is evidence that is second-hand).

Step 8 : Conclusion

Issue the verdict as to the guilt. Give reasons for reaching this conclusion. This allows for the chairperson to apply his/her mind as to reaching this conclusion. If the employee is found not guilty, finalise all documentation. If the employee is found guilty, proceed to the next step.

Step 9 : Argument in mitigation

The employee is afforded the opportunity to present evidence on mitigation. The employer has the right to argue this issue and should be made aware of this right. This would assist the chairperson in imposing a fair sanction on the employee. Such issues as refereed to in step 10 should be taken into consideration.

Step 10 : Sanction

Adjourn the hearing and reach a decision as to the reasonable sanction to impose. Consider the following:

• service record : length of service at the employer.

• previous disciplinary record : was any similar or other disciplinary sanctions imposed that is still effective. (A written warning should only have an effect for 6 months).

• any other mitigating circumstances, e.g. personal circumstances.

• nature of the offence and what implications does this have for the employer.

Step 11 : Sanction

Note: If the decision on the sanction/penalty is subject to approval, notify the employee.

Step 12 : Appeal

According to the new Act, no need exists for an appeal. The next step would be for the employee to apply to the CCMA or the Bargaining Council, if applicable, in terms of the Act. (The employee has 30 days from the date of dismissal to do so). This must be brought to the employee’s attention.

Step 13 : Documentation