Disciplinary Hearings and the CCMA
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Disciplinary Hearings and the CCMA

 

There are two questions that are asked at the CCMA in the case of a dismissal. First, was the dismissal procedurally fair? Second, was the dismissal substantively fair? Plainly said, they need to know if you followed the procedure for a dismissal and if the reason for the dismissal or the employee’s actions were serious enough to justify a dismissal.

 

Most employers think that a fair procedure consists of nothing more than "we spoke to him a number of times about his absenteeism, and we warned him several times. But eventually we had to dismiss him." The employer has absolutely nothing in writing – the employee goes to the CCMA and is awarded three to six months’ salary as compensation, or even reinstated with back-pay.

 

Everything should be recorded and documented – employers must realize that, right from the time the act of misconduct is brought to the attention of the employer, preparation for the CCMA conciliation and arbitration has begun.

 

More often than not, employers lose cases at the CCMA based on unfair procedure. This is because the importance of proper procedure is underestimated. If an employer were to dismiss an employee immediately after the employee steals money and no procedure is followed – this employee could be awarded with compensation at the CCMA based on the lack of procedure. Even though the reason for the dismissal may be sufficient to warrant a dismissal we must follow procedure. The procedure that is compulsory, in respect to dismissals based on misconduct, is a Disciplinary Hearing.

 

A disciplinary hearing is a procedure which consists of opening statements, evidence-in-chief, cross-examination, re-examination and closing statements. An impartial chairperson must be elected to chair the hearing in order to make a finding and provide a recommendation. The employer may lead his evidence or select an employee to do so on the employer’s behalf- this person is referred to as the initiator. During the disciplinary hearing the employee is allowed an opportunity to defend or explain himself and his actions.


In every instance where there is a possibility of dismissal, the employer must prepare for the disciplinary hearing as if he were preparing for the CCMA – for the simple reason that almost all employees will refer the matter to the CCMA after being dismissed. This preparation involves investigating, gathering of evidence, taking down witness statements and arranging the disciplinary hearing. During the hearing the initiator will be required to lead the evidence which could be documentary evidence; electronic evidence in the form of video footage or audio recordings; or witnesses to the misconduct.


When misconduct occurs, the employer should check to determine whether there are grounds for a dismissal. If dismissal is a possibility then the employer should then notify the employee of the allegations, using a notice of disciplinary hearing containing all relevant information. The employee should be given a minimum two working days to prepare for the disciplinary hearing. The employee is entitled to the assistance of a trade union representative or a fellow employee.


Procedural fairness in general terms refers to a disciplinary hearing that has to be held to afford the employee an opportunity to state his or her defence. Employers who do not have their own disciplinary code must adhere to the principles set out in schedule 8 of the Labour Relations Act and should be mindful of the requirement of consistent discipline.


Not every act of misconduct requires a formal hearing – usually only those instances where dismissal is a distinct possibility will require a formal approach. Ensure to approach all serious misconduct in a formal manner and be certain to have a paper trial of all interactions so as to avoid paying large sums at the CCMA.

 

Shenaaz Khan

Consultant at Labour Specialists Employer Solutions

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