Disciplinary Hearings

There are numerous misconceptions regarding workplace disciplinary hearings. Some managers and employers follow such stringent processes during an enquiry, placing more than necessary precautions in place from fear of running a procedurally incorrect enquiry. Managers and HR practitioners alike, go to extraordinary lengths to ensure the “alleged offender” receives exactly 48 hours written notification to prepare prior the hearing. They place much weight on the chairperson, insisting that they are a neutral third party; reading the employee their rights to representation by a fellow employee or union shop steward, their right to interpretation, the calling of witnesses, cross examining etc..  Labour courts however, have recently been placing more emphasis on whether or not the employee was given the opportunity “to be heard” as opposed to following a legalistic process by the book and in doing so making the employee feel like a criminal.

A workplace enquiry should be a process where the employee and a Company representative address a situation or incident and explore “both sides of the story” and in doing so come to a conclusion regarding the way forward. Managers and HR practitioners tend run the process as if in a court of law, resorting to terminology such as “alleged allegations”, “offender”, “charges against the employee”, opening and closing statements”, guilty or “innocent” etc..

This kind of treatment understandably can leave the employee with a bitter taste in their mouth, damaging the working relationship and creating an atmosphere of animosity. In criminal law, in order to be prosecuted an individual is to be found guilty “beyond reasonable doubt”. In the workplace on the other hand, an employee can be deemed guilty of the transgression on a “balance of probabilities”, so in other words, where there is smoke... there is fire.

The reason Companies tend to follow such stringent processes is because of the fear of being taken to the CCMA for unfair treatment towards an employee, as a result of a procedurally or substantively unfair hearing, but as long as you give the employee an opportunity "to be heard" and you are able to back your decision up with reasonable documentation, there shouldn’t be any concern of repercussions. And where in a court of law, an outcome of a trial can result in jail time... an outcome in a workplace disciplinary enquiry can be anything from a verbal warning to a parting of ways in the most extreme of circumstances. Boring by comparison...? All the more reason to stop treating employees like criminals; give them an opportunity “to be heard” and make a decision regarding the way forward.

Compiled by Nikki Emmenes