Planning the Hearing

Notice Of The Hearing

The employee must be given written notice to attend the disciplinary hearing. The notice should specify:

1. The charge to be faced, i.e. the nature of the misconduct with which the employee is charged.

2. The date, time and place of the disciplinary hearing.

3. That the employee will be allowed representation by a fellow employee or shop steward of his choice at the hearing, and that he is responsible for arranging such representation if he wishes to exercise this right.

4. That the employee will be allowed to call witnesses at the hearing and that he is responsible for arranging for the presence of any such witness.

5. That an interpreter will be provided should the employee request the services of one.

6. That a failure on the part of the employee to attend the hearing without a valid reason, may be regarded as a waiver of his right to such a hearing, in which case the hearing will proceed in his absence.

7. Whether or not the employee will be suspended on full pay pending the outcome of the hearing. An example of a Notice to Attend a Disciplinary Hearing is given as Annexure “A” at the back of the book.

The Charge To Be Faced

It is not necessary to be present the details of the charge in excessively technical legal language. However, sufficient details must be given to enable the employee to know the nature of the act or omission and the date on which it occurred so that he can prepare a defence. As an example merely to give “insubordinations” as a charge is an insufficient detail. It would be better to frame such a charge in the following way: “That on 28 October you refused to carry out a delivery when instructed to do so by the Despatch Manager and in addition, you answered the Despatch Manager in a rude and insubordinate manner.”

Giving a brief description of the facts that gave rise to the charge not only enables the employee to prepare his defence but also allows the Chairman of the hearing to make any finding which is consistent with the facts when they are proven. In the above example depending on the evidence, the Chairman may find the employee not guilty of insubordination but guilty of failing to carry out a lawful and reasonable instruction.

The Date, Time And Place Of The Disciplinary Hearing

The notice of the hearing should give the employee sufficient time to prepare his defence. This requirement must be balanced against the conflicting requirement that the employee is entitled to have the hearing take place within a reasonable time after the alleged offence, i.e. the hearing must not be unduly delayed. For the most commonly encountered hearings where the charges are reasonably straightforward, two working days’ notice of the hearing would be regarded as sufficient. However, where the charges relate to more involved offences such as fraud committed over a long period of time, both the Employer and the Employee may reasonably require a longer period of time to prepare their respective cases.

The Employee Must Be Allowed Representation

In terms of the Act, the employee is entitled to be represented by a fellow employee of his choice. Representation by outsiders such as lawyers and consultants is not allowed.

Witnesses

The employee may call any witnesses he wishes whose evidence is relevant to the charges he has to face. Accordingly, the witnesses may be persons not employed by the Employer, such as customers who may for instance testify that the employee was not rude to them.

Interpreter

The Employer must, at the request of the employee, arrange for an interpreter to be present at the hearing in order that the employee may give evidence in the language with which he feels most comfortable.