Disciplinary Hearings

As a manager, you may be required to act on behalf of your employer in a disciplinary enquiry/hearing. This may be a very daunting task, especially if you have never had any labour law training or background.

It's all really very simple, especially if you know what it is that you need to prove.
Most disciplinary enquiries relate to 'misconduct' or the blameworthy breach of a rule in the workplace or related to the workplace. The Labour Relations Act of 1995 (the LRA) requires that you prove the following:

1. That a rule in the workplace, or of relevance to the workplace, exists
Let's say that you are dealing with an employee who is a habitual late-comer and has general time keeping problems. The workpalce rule that you need to prove, is that there is a rule relating to working hours. Ordinarily, you would find the rule in the employee's contract of employment, in a disciplinary code and procedure or it may be derived from common law.

2. That the employee was aware of, or could reasonably have been expected to be aware of this rule
All you have to prove here, is that the employee knew what was expected of them, or that they should have known. Some rules are so well known that it is not necessary to reduce those to writing (i.e. rules relating to honesty or theft). You may have the employee's signature on their contract or the disciplinary code, or the employee may have received the instruction/rule in a memo or e-mail. Perhaps the rule is contained in an employment manual that all of your employees get when they start at your company, or information is available in a central repository (like on the intranet or in a policies file) that all employees have access to. Perhaps the employee has complied with the rule in the past, thus indicating that they are, in fact, aware of the rule.

3. That the rule is valid and reasonable
This may seem daunting, but all you really have to prove to the chairperson, is why the rule is in place - what purpose it serves in the workplace and why, in your specific circumstances, it is a valid and reasonable rule to have made. Different industries require different approaches and most external chairpersons need a little more information about your unique workplace situation.

4. That the rule has been consistently applied
Basically, all you have to prove, is that you are not victiizing this specific employee and that others who have been guilty of the same transgression in the past, have met with the same consequences. Of course, if it's the first time this incident has occurred, then there would be no precedent and there would be no guideline on 'consistency'.

5. What a fair sanction would be
Considering the seriousness of the incident, how the rule has been applied in the past, and whether you can continue to trust the employee and continue with an employment relationship is going to guide you in establishing what a fair sanction (i.e.a warning, final warning or dismissal) would be under the circumstances.

So, no matter what the employee has been charged with, you always have to prove these 5 things in any hearing. In your preparations for the hearing, you will now be able to identify the evidence that you will require (documents, oral testimony, objects etc) in order to prove these facts to the chairperson, on a balance of probabilities.

For any queries or assistance, please contact Hartung Associates or e-mail us info@hartungassociates.biz