I AM GOING INTO MY DISCIPLINARY HEARING ALONE, WILL IT BE FAIR?

“A man comes into the world with hands pushed into fists, as if he wants to say, ‘All this world is mine.’ A man leaves this world within his palms open, as if to say, ‘Look, I take nothing with me.’” – The Talmud

Introduction

MISA previously articulated in an article published on 7 April 2022, what to expect when facing a disciplinary hearing, and who may represent you. The article described that, as an employee, you do not have the automatic right to legal representation or union official representation at a disciplinary hearing; however, you may be assisted by a trade union representative (shop steward) or a fellow employee, should you wish, in accordance with the provisions of item 4 of the Code of Good Practice, schedule 8 of the Labour Relations Act (LRA).

Are you on your own?

The thought of attending a disciplinary hearing without legal representation may be daunting, especially if you have never been subjected to a disciplinary hearing before, and do not know what to expect from the process. As a lay person you may feel that you might not be in the best position to be able to state your case properly, and may be uncertain as to what the disciplinary process entails, fearing that proper procedure may not be followed, and that the company may take advantage of you.

With the failed expectation of a union official representing you, you may be of the view that assistance from a fellow employee or shop steward may not carry the weight that a union official would, in safeguarding your interest; taking into account the nature and complexity of the disciplinary charges and the procedure to ensue, and you may in the given circumstances opt to represent yourself.

MISA wishes to assure you, that you are not entirely alone, as MISA will be able to guide you throughout the process, albeit telephonically during the enquiry, or prior thereto.

What to look out for?

As much as a disciplinary hearing is an internal process, equip yourself with the knowledge of what to expect to take place before, during and after your disciplinary hearing:

• Before the commencement of your disciplinary hearing, a notice to attend a disciplinary hearing must be issued, detailing the nature of charges levelled against you, with specific reference (to some extent) to the (alleged) incident(s) or facts that occurred leading to the enquiry; as well as your rights as an employee in anticipation of the disciplinary hearing;
• Ensure that you clearly understand the charges levelled against you and that you have reasonable time to prepare for the hearing;
• Should representation be declined, MISA will offer telephonically advice;
• On the day of the disciplinary hearing, an independent chairperson will ask you to plead to the charges levelled against you;
• The company will give their side of the story and you will be afforded the opportunity to ask questions in respect of what they presented – that is, cross examine their evidence – placing on record to the chairperson what you dispute about the employer’s version;
• The same will apply for any company witnesses, affording you the opportunity to question any testimony you do not agree with;
• You will then be given an opportunity to lead your side of the story, and the company may, in turn, cross question you;
• You may call witnesses, if any, to support your version of events.

In essence, you should be allowed a reasonable period to prepare a response to the allegations and once the disciplinary hearing commences, you must be allowed the opportunity to state your case in response to the assertions made by the employer or charges against you.

What does the LRA and our Courts say in respect to procedural fairness?

Item 4 of the Code of Good Practice on Dismissal (The Code), describes the fair procedure to be followed by an employer in the event that dismissal is contemplated:

“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. The employer should notify the employee of the allegations using a form and a language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.”

In general, the abovementioned must be adhered to in order for your disciplinary hearing to be procedurally fair. Section 188(1)(b) of the LRA requires that a dismissal must be affected in accordance with a fair procedure.

The Labour Court, further, in the matter of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) confirmed that an employer is required to conduct an investigation, give the employee or his/her representative an opportunity to respond to allegations after a reasonable period, and thereafter to take a decision, and give the employee notice thereof.

The Labour Appeal Court in the matter of Metropolitan Municipality v South African Municipal Workers Union and Others (JA56/2015, JR1676/2012) [2017] ZALAC 80; [2018] 3 BLLR 246 (LAC); (2018) 39 ILJ 546 (LAC) (18 December 2017) held that where an employee was dismissed for participation in a violent disruption in a disciplinary hearing, whereby the subsequent dismissal was not preceded by a second enquiry into the act of disruption; the Court found that the dismissal was substantially fair, but it was procedurally unfair. One of the reasons for the procedural unfairness, was by virtue of the audi alteram partem principle (a Latin phrase, and legal principle, that translates as “Let the other side be heard;” essentially, requiring the employer to afford an employee an opportunity to state his case), was not applied.

Conclusion

The purpose of a disciplinary hearing is to ensure that you are afforded the opportunity to be heard, lead evidence in defence to the charges levelled against you, and to challenge the allegations made by your employer.

Your disciplinary hearing might be an internal process and you may not have an automatic right to external representation as you would have preferred, however, that should not deter you in stating your case before the chairperson.

Going alone into your disciplinary hearing is not the end of the world, and any unjustifiable conclusion in relation to procedural and/or substantive fairness can be challenged by MISA, at a later stage, at the DRC (Dispute Resolution Centre of MIBCO). 

MISA – Just a phone call or an e-mail away!

(Article by Tumi Ntshekang – edited by Nichole Turner)

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  

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