Disciplinary hearings are never pleasant, but they must be for a fair reason and in accordance with a fair procedure – this is laid out in the Labour Relations Act, section 188. Scorpion Legal Protection explains 5 situations where a disciplinary may be unfair.
1. When the employee has not been properly informed of the charges
The employee must understand exactly what they are being accused of – what charges they need to answer for – and these must be communicated to the employee in advance.
2. When the employee is not given proper opportunity to prepare
The accused employee must be given adequate time to prepare for the hearing. What is considered ‘adequate’ will depend on how complicated the matter is, for example, the employee may want to consult with their union rep or get legal advice before the hearing and needs to be given a reasonable chance to do so.
3. When the employee is not given a chance to be heard and to present a defence
The point of a disciplinary is to hear both sides of the issue, so employees must be given a fair chance to defend themselves, to present their side of the story and any witnesses or evidence that may help prove their case. This is not just a chance for the employer to accuse and steamroll over an employee and take action against them.
4. When the employee is not being fairly judged
The chairperson should be an impartial judge, not standing for or against either side. This person must weigh up the evidence presented and come to a decision that is fair and based on what was presented. The chairperson is not supposed to be biased, and should you be able to prove that they are, you have grounds to appeal the decision or go to the CCMA over an unfair hearing.
5. When any improper tactics have been used
This counts for both employer and employee. It includes actions such as falsifying documents, influencing witnesses, coercing employees to make admissions or confessions and tampering with audio and video tapes. A situation that is clearly unfair is where the employer instructs the chairperson of the hearing to find the accused employee guilty regardless of what happens in the hearing, which means that the outcome was decided before any proper procedure was followed.
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* This is only basic legal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.