A vast amount of legislation regulates labour relations in South Africa. It is crucial that an employer follows the correct procedures, especially when dismissing an employee.
A disciplinary code should include clear rules and procedures for the workplace. When an employee fails to follow these, the employer can apply progressive discipline (warnings) or, in cases of severe misconduct, proceed directly to a disciplinary hearing.
Why would I hold a hearing in the first place?
A disciplinary hearing must be held to ensure that fair procedure, as stipulated in legislation, is followed, and that there is substantive reason for the employee to be dismissed.
It is also of the utmost importance that an employee be given the opportunity to present his or her case and call witnesses. Under no circumstances may an employee be dismissed without a disciplinary hearing being held.
To conduct the hearing, a chairperson must be appointed. He or she is responsible for conducting the hearing in an orderly manner to achieve a fair and objective outcome.
Others present at a hearing can include the employer, the employer’s representative, the employee, the employee’s representative, witnesses, and a translator.
Postponing a hearing
It is not always possible to proceed with a disciplinary hearing on the agreed day.
The chairperson therefore has to decide, at his or her discretion, if there are sufficient grounds for postponing the hearing after objectively considering the request and evidence for postponement.
When a role player is unable to attend the hearing, the chairperson should consider the importance of that person to the hearing, as well as whether the reason for his or her absence is valid.
The following are valid reasons for postponing a hearing:
- Illness: The chairperson should request sufficient proof of the illness,such as a medical certificate.
- Transport difficulties: The chairperson should use his or her discretion to determine the validity of this.
- A family emergency: The chairperson should request sufficient proof of this, such as a death certificate, or doctor’s certificate.
- Insufficient notice to attend the hearing: An employee must receive notice, in writing, to attend a disciplinary hearing at least 48 hours before the hearing is scheduled.
- The employee or employee’s representative should also receive adequate time to prepare; if sufficient time to prepare was not given, the hearing must be postponed.
- Influences on the hearing: It is in the best interest of all attendees of the hearing to be told, well in advance, of any facts that might affect the outcome. These include, for example, if a role player is under the influence of drugs or alcohol, or requires an interpreter, or if relevant new information has emerged.
- An objection to the chairperson: This is relevant if any role player believes that the chairperson is biased, or if the chairperson has any prior knowledge of the facts of the case. The chairperson can decide if there are grounds for the objection and excuse himself or herself, after which the hearing will be postponed.
What happens after a postponement?
Once a hearing is postponed, the employer has to issue the employee with a new notice at least 48 hours before the next hearing is scheduled.
The chairperson can decide, after careful and objective consideration, how often a disciplinary hearing can be postponed.
For all labour-related issues, phone the LWO Employers’ Organisation on 0861 101 828.
Mishka Mars is a legal advisor at the LWO Employers’ Organisation, which is registered with the Department of Labour. She holds a BCom (Law) and LLB