Vital – all evidence must be presented

Every year, my firm trains approximately 500 delegates in the private and public sectors on disciplinary hearing skills and competencies.

With in excess of 80 percent of all labour disputes being dismissal related, employers, employees and trade unions recognise that it is imperative to be skilled in conducting disciplinary hearings.

The most common shortcomings have remained constant over time, and if overcome they can contribute to a more effective and lawful disciplinary process which maximises success at the dispute resolution bodies, such as the CCMA and bargaining councils, should a case be referred for adjudication/arbitration.

To begin with, the burden of proof in disciplinary hearings is all too frequently ignored or misunderstood.

Employers bear the burden of proof in disciplinary cases.

Put differently, an employee can only be found guilty by virtue of the fact that the employer complainant has proved the employee’s guilt to the chairperson, not by virtue of the fact that the employee has failed to prove that he/she is not guilty.

Second, guilt is established on the probabilities, not on the absence of reasonable doubt. So for a chairperson to find an alleged offender guilty, there must be sufficient proof from the employer complainant that the alleged offender probably is guilty. Employers occasionally encounter difficulty in alleged unfair dismissal arbitration cases due to them having deviated from their own disciplinary procedure or code.

An employer will always be scrutinised for procedural fairness through an assessment of its compliance with its own procedure.

Parties doing disciplinary hearings frequently fall foul of the duty to present all relevant evidence at the disciplinary hearing, which in simple terms obligates parties to disciplinary hearings to bring all evidence and not keep some evidence away, only to be used if the matter is disputed.

If you have evidence which you, however, choose not to introduce in a hearing, it is highly unlikely that it will be admissible in any subsequent arbitration hearing.

Penalty selection is a key aspect of any disciplinary hearing in which the alleged offender has been found guilty.

Employers occasionally lose CCMA and bargaining council cases in circumstances in which dismissal is deemed to have been too harsh a penalty.

That’s not to say, of course, that dismissal is to be avoided. Employers should, however, bear in mind that every dismissal decision should be realistically assessed to determine whether an objective adjudicator would concur that dismissal was justified in the circumstances.

Finally, employers by and large have disciplinary procedures and codes which are significantly more technical than that actually required by the Labout Relations Act (see Schedule 8 of the LRA).

My experience of auditing such procedures and codes across a wide cross-section of industry and commerce shows employer disciplinary procedures and codes are unnecessarily burdensome of the employers they seek to support.

l Book for a Seta accredited “Conducting Disciplinary Hearings” workshop (June 5 and 6) by phoning 011 476 1620, e-mail admin@ tonyhealy.co.za, or visit www.tonyhealy.co.za