THE DISCIPLINARY ENQUIRY[Tuesday, April 06, 2004 17:42:00]
THE DISCIPLINARY ENQUIRY
Employees and Employers should have comprehensive knowledge regarding the right of the employer to discipline his/her employees. Although this right is afforded to employers, this does not give the employer carte blanche. There are important International Labour Conventions, employment legislation and case law that govern this aspect of the workplace. An embedded right is that no employee may be unfairly dismissed.
Ilene Barrie and Gerhard Cloete from Labour Logic wrote this article to provide practical hands-on advice on how best to deal with a disciplinary enquiry.
PROCEDURE LEADING UP TO A DISCIPLINARY ENQUIRY
If there has been an infringement of a workplace rule, item 4(1) of the Code of Good Practice: Dismissal requires that the employer must conduct an investigation to determine whether there are grounds for dismissal. The investigation should determine the following:
§ What was the alleged offence?
§ Who was involved (the identities)?
§ What was the sequence of events?
§ When, where and how did this offence take place?
During the investigation, the employer has the right to place the employee on suspension. The reason for this is usually to remove the employee from the workplace so that he or she does not interfere with the investigation or intimidate witnesses. Once again, this suspension is subject to substantive and procedural fairness. There must be a reason for the suspension and one should be informed (preferably in writing) of the reasons and the conditions of the suspension, and when it will be lifted. If these substantive and procedural requirements are not adhered to, the suspension may amount to an unfair suspension.
If the investigation reveals that there are sufficient grounds for dismissal, the employer must schedule a disciplinary enquiry. The employer must notify the employee in writing of the allegations against him/her. This must be done in a form and language that the employee can reasonably understand. Notice of the charge and of the disciplinary enquiry is usually given simultaneously and in the same document.
THE DISCIPLINARY ENQUIRY
· The employee’s rights
The Labour Relations Act, 1995 does not regulate a fair disciplinary enquiry. However, the Code of Good Practice: Dismissal provides a number of guidelines for a fair enquiry.
In terms of these guidelines the employee should be entitled to a reasonable time to prepare the response to the charge and be allowed the opportunity to state a case in response to the charge. In other words, the employee should be allowed to participate in the enquiry and respond to the allegations. The employee is also entitled to the assistance of a trade union representative or a fellow employee during the enquiry. A trade union representative is a member of a trade union who is elected to represent employees in the workplace, commonly referred to as a shop steward. Representation at a disciplinary enquiry is normally contained in the collective agreement with the recognized trade union. Only representatives of the recognized trade union would be allowed to partake in these proceedings.
The purpose of assistance is twofold. Firstly, the employee should be assisted with the presentation of the response to the charge. Secondly, the representative must ensure that the procedure, which is followed during the enquiry, is fair. The representative must play an active role during these enquiries. It is important to note that an employee is not entitled to legal representation during an enquiry. An advocate or an attorney may not represent the employee.
Usually, the decision about whether or not the employee is guilty of the alleged misconduct and what the penalty should be where the employee has been found guilty of the alleged misconduct, is the responsibility of the chairperson of the enquiry. However, some Disciplinary Codes may stipulate that the chairperson only makes a recommendation to senior management. The latter makes the final decision and such decision could differ from the chairperson’s recommendation.
The decision and reasons for the specific sanction must be communicated with the employee and this must preferably be done in writing. If the employee is found guilty, the employer must inform the employee of the penalty. The employer also must remind the employee of any right to refer the matter to a bargaining council with jurisdiction or to the Commission for Conciliation, Mediation and Arbitration (CCMA).
The employee must exhaust the internal dispute settling procedure as provided in the Disciplinary Code of the employer. If the Code makes provision for an appeal or review, the employee will be entitled to an appeal/review in accordance with the provisions of the Code.
· The process
The following parties will be involved in the disciplinary enquiry:
· The chairperson.
· Management representative (the initiator).
· The affected employee.
· The representative (fellow employee or trade union representative).
· Human resources consultant.
· Scribe (if the meeting is not electronically recorded)
At the beginning of the enquiry, the chairperson will welcome all the parties present. The employee must be notified of his/her rights. The chairperson should ascertain whether the notice of hearing was served timeously on the employee. The chairperson must explain the procedure that will be followed.
The procedure will include:
(a) The hearing of opening statements.
(b) The hearing of the employer’s evidence and witnesses.
(c) The hearing of the employee’s evidence and witnesses.
(d) The hearing of closing arguments.
The proceedings should adjourn to allow the chairperson to consider the evidence. When the enquiry reconvenes, the chairperson will state his/her finding (guilty/not guilty). If the finding is not guilty, the chairperson will close the disciplinary enquiry at that point.
If the finding is that of guilty, the chairperson will hear arguments on the appropriate sanction including mitigating and aggravating circumstances.
The enquiry will again adjourn to enable the chairperson to consider the appropriate penalty. Once that decision is made, the enquiry will reconvene and the chairperson should inform the employee of his/her decision. The chairperson should then inform the employee of the right to declare a dispute at the CCMA within 30 (thirty) days.
The enquiry is complete.
This is just a broad guideline to assist in ensuring that the enquiry complies with procedural requirements.
It should be evident from this article that the employer’s right to discipline is subject to various legal requirements. Implementation of these requirements is part and parcel of the employee’s right not to be unfairly dismissed. If you need any further advice or assistance on labour issues, you may contact Labour.co.za’s Legal Department in