Formal disciplinary hearings - what employers need to know

Introduction

While formal workplace disciplinary hearings are not a legal requirement for procedural fairness and the courts and legislative development have been moving towards more informal decision-making by employers (saying that the CCMA or Bargaining Council is the place where the full 'hearing' should take place), many employers still choose, understandably so, to go through the internal hearing process for the sake of substantive fairness.

• Employers do not want to find out at an external forum that they did not have sufficient grounds/evidence for dismissing an employee for misconduct and to then be faced with reinstatement of said employee together with the employment-relations repercussions flowing from that. (Remember that a finding of substantive unfairness obliges the arbitrator to consider reinstatement as the primary remedy, the employer cannot choose to rather pay compensation.)

• Also, taking a decision to dismiss someone based only on a superficial investigation and 'dialogue' with the employee, without fully investigating the details and factual discrepancies first, has huge consequences for that employee's livelihood and career - even if the decision is later reversed.

So, there are good reasons to still do internal disciplinary hearings, especially in complex cases - but then by all means do them properly! Do not just go through the motions for the sake of procedure - then you are just wasting time and resources.

We have put together some important pointers below for employers and initiators to observe when investigating and preparing a case of potential misconduct in the workplace. Especially when utilising external chairpersons during a formal hearing, it is important to provide sufficient background and context about the organisation by way of evidence.

It should also be remembered that the focus is on fairness, not formality, and that a flexible approach is therefore encouraged.

What is Misconduct?

Misconduct is the breach of a rule or standard relevant to the workplace by an employee, and which is attributable to the fault of the employee (either intention or negligence).

The employee will not be guilty of misconduct if –

o the relevant rule or standard does not exist; or it is not valid and reasonable;

o the employee cannot reasonably be expected to be aware of the rule/standard;

o the employee did not (factually) breach that rule or standard; or

o the employee was not at fault / to blame for the breach (i.e. has a justifiable and reasonable explanation for the breach).

It stands to reason that the employer therefore has to be able to find sufficiently persuasive information that indicates that all of these aspects are in place, in order to successfully pursue allegations of misconduct against an employee by way of a disciplinary process. (Remember that performance issues, if not attributable to the fault of the employee such as negligence, laziness, etc., may rather resort under Incapacity, where a different process than a disciplinary one is required.)

The Investigation

A proper investigation is crucial as a starting point for workplace discipline. The disciplinary hearing itself is not meant to be where/when the investigation takes place. A hearing should only follow if, based on a completed investigation and information already gathered, the employer concludes that misconduct on the part of the employee is probably indicated.

A thorough investigation would include:

• interviewing everyone involved who may have seen / heard / been part of, the incident;

• getting statements in writing from potential witnesses;

• gathering other relevant evidence such as documents, surveillance, records, etc.;

• interviewing the implicated employee(s) to ascertain if there is an explanation for their conduct, and if possible, get a written statement from them;

• putting together a clear timeline of events, clarifying any gaps / questions, and verifying explanations.

Only after this investigation has been completed, can and should the employer make a determination if disciplinary steps are required, and if so, whether this should be informal or formal in nature.

The employer may also decide to suspend the employee, as a precautionary measure, on full pay, in order to protect the integrity of the investigation or disciplinary process and prevent interference; or to protect the business or other employees against ongoing harm or potential risk. This is not a paid holiday, however, and suspended employees can be expected to remain available to the employer in all respects.

Formulating misconduct allegations / charges

The purpose a misconduct charge is simple: providing the employee with sufficient details of what they are alleged to have done wrong in the workplace context, so that they can provide an explanation / defend themselves. It therefore stands to reason that the charge should only be formulated once the employer has completed its investigation and knows what it would be able to prove. Pursuing a charge where the supporting evidence is lacking, serves no purpose.

The charge should be formulated with clarity in mind – it should not be obscured, muddled, vague, convoluted or put in overly-technical or legal language. The relevant details (what, when, how) are more important than assigning some ‘label’ to the alleged misconduct. Plain language is preferred, rather than using ambiguous terminology or arbitrary characterisation of the conduct.

Important: The wording of the charge (or its categorisation) does not determine or pre-empt the outcome – it is up to the chairperson to determine this at the end, based on the full context of the evidence.

Preparation, preparation, preparation

The preparation stage follows between formulation of the charges and the commencement of the hearing. It comprises two main phases:

(1) The initiator has to decide on a strategic approach or ‘game plan’ in terms of how the evidence should best be presented, including -

• placing the evidence into a cohesive format (storytelling) with a proper background/context to place the chairperson in the picture, a complete timeline, and following a chronological order;

• deciding which witness to call, and in which order (and ascertaining if they are available to testify);

• determining which documents or records to present, preparing these in a paginated bundle and making sufficient copies for all the attendees at the hearing.

  
  

(2) Sitting down with the witnesses the day before the hearing.

• Witnesses should give an honest account of what they know regarding the incident, but the initiator should be clear on what they are going to say when testifying, and determine if there are any changes to their original statements.

• The witnesses should be briefed on what to expect in terms of the procedure at the hearing, as well as the various role players who will be present.

• Prepare the witnesses for cross-examination – such as reminding them to remain calm and to be honest if they cannot recall something or are unable to answer a question.

It is important to keep in mind that the chairperson may need broader context than just the immediate events surrounding the incident – especially if the chair is external and not part of the organisation. The relevant policies and rules, why these matter, the values and standards, organisational structure, applicable workplace practices and the like, may need to be explained to the chairperson to provide a backdrop for the incident and to facilitate a proper value judgement on the evidence.

What is ‘proof’, and how much is required?

The onus of proof in disciplinary hearings is not the same as in criminal courts. Absolute ‘proof’ at the exclusion of all possibilities, is not required – it comes down to a holistic comparison between the version presented by the initiator and that of the employee, and deciding which is the more probable of the two.

The initiator must provide sufficient evidence to tip the probability scale in the employer’s favour in respect of whether the employee had committed the misconduct. In short, the employer’s evidence must be more convincing than that of the employee. If both versions are equally believable, then the employee should be found not guilty, since the employer bears the onus to positively prove the commission of misconduct.

Note that the adage “he who alleges must prove” applies. This means that the initiator must first provide evidence to establish the tenets of misconduct, before the employee is required to rebut this. In the same way, if the employee offers a defence / explanation / excuse, it is up to him/her to substantiate this assertion with relevant evidence.

Evidence can, in this context, include direct or circumstantial evidence, and it may be tendered by way of documents, telematics, photos, videos, results from tests, and – importantly – witnesses. Live testimony and questioning of witnesses allow for a crucial exchange enabling the chairperson to establish facts and to make a value judgement. The chairperson considers various factors such as the credibility and reliability of the various witnesses on both sides, as well as comparing the probabilities of each version on the whole. This level of assessment is not possible from a mere review of written statements, so initiators are encouraged to present evidence by way of live witnesses – whether in-person, telephonically or via other electronic means.

The chairperson’s duty is to objectively and holistically consider the available evidence, and to make an appropriate value judgement based on this, to determine whether the commission of misconduct by the employee has been sufficiently proved. If so, the last step is then to determine an appropriate and proportionate sanction to address the misconduct.

The Outcome

A disciplinary process in a workplace is not about punishment - it is a necessary risk measure for the organisation. A workplace cannot function without rules, and if rules are not enforced, they might as well not exist.

If an employee commits misconduct, management (on behalf of the employer) is duty-bound to address this appropriately. This obviously includes following a fair process, however the consequences for the misbehaviour, if found, must be put squarely at the feet of the offending employee: the manager is a conduit to delivering the consequences for behaviour that had been triggered by the employee in the first place.

So, when progressive discipline has failed to correct behaviour; or the misconduct is serious or gross; and continued employment (which requires trust and reliability) is consequently no longer viable, dismissal is an appropriate business response.

As per the Labour Appeal Court in De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10: “Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise.”

© Judith Griessel