Disciplinary Hearings – The Right to Understand In Order To Be Heard

Article by Anne-Marie Bodenstein (Industrial Relations Specialist)

A notice to attend a disciplinary hearing (the notice) can be intimidating and perceived as the end of your career. Although this is a very serious and discouraging experience, you do have rights. The purpose of being notified that you will be subjected to a disciplinary hearing is intended to inform you that your conduct is perceived to be in breach of a rule, policy or workplace procedure and that you must answer to this perception to either rebut the allegations or to confirm guilt.

The charges:

It is the duty of the Employer to ensure that the charge(s) against you are clearly set out. Failure on the employer’s side to draft or set out clear and understandable charges, might prejudice you as well as the process. Remember that the employer have to prove, on a balance of probability, that you are guilty of the transgression. Charges cannot be based on assumption of suspicion only, there must be factual evidence as well. Inappropriate or misconstrued charges might render the finding, after the disciplinary hearing, inappropriate and open for scrutiny.  

‘Particularisation’ is the term used with reference to when a charge is formulated. This term is defined by vocabulary.com as ‘an individualized description of a particular instance’. The importance of a clearly described or formulated charge, is to give you the opportunity to prepare a defence.

The importance of properly drafted notices or charge sheets is founded in the Code of Good Practice: Dismissals. Specifically item 4, providing that a charge levelled against an employee must be “in a form and language that employees can reasonably understand”.  This principle was confirmed at the CCMA in SACCAWU obo Nkambule & Discom Ermelo Clicks New Holdings Ltd (case number: MP2112-02) where the arbitrator held that ‘the charges should be specified with sufficient particularity to enable the employee to answer them’.

The Labour Appeal Court, EOH Abantu (Pty) Ltd v CCMA and Others [2019] 12 BLLR 1304 (LAC), summarised the principle of fairness as far as it relates to the charges in a disciplinary hearing. It was stated and reaffirmed in paragraph 15 that ‘an employee must be made aware of the charges against him. It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them. The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing where it would be prejudicial to do so…sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed.’ (Own emphasis)

Your rights:

Every employee, in terms of the Labour Relations Act 66 of 1995 (LRA) section 185, has the right not to be unfairly dismissed. The notice must therefore set out your rights during the scheduled hearing as well as the alleged transgression or breach. You are entitled to know and understand the nature of the charge(s) against you and you must be given a fair opportunity to state your defence. This is in terms of the audi alteram partem rule or principle – in short, the right to be heard.

You have a right to request more information if you do not understand the charge. This is where the importance of an employer’s duty for proper particularisation comes in.

Conclusion

Disciplinary Hearings can be very complex, especially if you have never experienced such a process before.  You are not alone and you do have rights, even prior the commencement of the Disciplinary Hearing. It is prudent that you contact MISA the moment you receive the Notice as the clock starts ticking the moment you have received it.

When in doubt, remember MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance: 

Legal/Labour-related enquiries                      Legal@ms.org.za  

Legal Reception                                                011 476 3920 / 071 880 9682    

MISA Benefit claim-related enquiries            Claims@misa.org.za   

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

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