Discipline is at the forefront of every employment relationship. The general expectation is that employers are to set ground rules which are compliant to the labour laws and all employees are to follow them. As we may be aware, this is not always the case.
Violation of company policies and procedures happen almost every day, not forgetting breaches of contractual obligations. To guard against this, companies have disciplinary policies. These policies are used to implement the core mandate of discipline i.e., to correct unwanted behaviour. The disciplinary policy outlines the various types of misconducts or offences that may exist or are likely to be committed by employees in the workplace and their relative corrective measures.
The policy also includes the procedures to be adopted, the most common one being a disciplinary hearing. Before an employer can dismiss, demote, or issue a warning letter to an employee, they must first hold a fair disciplinary hearing. Now, the million-dollar question is what constitutes a fair disciplinary hearing? Read on!
Definition
Before we can unearth what a “fair” disciplinary hearing is, it is best to understand what a disciplinary hearing is for starters. This is a formal setting that presents an opportunity for an employee(s) to defend themselves against allegations of misconduct brought forth. The purpose of a disciplinary hearing is to verify whether a misconduct has been committed as well as what the appropriate disciplinary action is i.e., written warning, demotion or dismissal. It is evident that a disciplinary hearing is meant to ensure the procedural fairness element in accordance with the rules of natural justice.
The requirements
Now that we have a clear understanding of what a disciplinary hearing is, we can appreciate what a fair one entails. The employee must be notified in writing at least 48 hours before the hearing, this is meant to help them prep their defence. The employee ought to be informed of the nature of the charge(s) against them i.e., a clear outline of the offence/charge inclusive of timelines etc. The employee must be present during the hearing, and they must be allowed to not only bring their own evidence and witnesses, but also question other witnesses.
The employee must be given the option of being assisted or represented by a colleague of their choice without any prejudice. The previous statement should be read together with the third point i.e., even if the employee is being assisted, they must also be present during the hearing.
The chairperson of the hearing must be neutral or unbiased, this is to say there must be no link between the chairperson and the disputing parties or the issue at hand. Furthermore, sufficient evidence must be provided to prove that the alleged misconduct has been committed and that it was committed by the said employee. In the event that employee is found guilty, they must be given a further opportunity to bring forth mitigating facts, this is before a final decision is reached.
Upon conclusion, the employee must be notified of the appeal process should they desire to appeal the sanction. Over and above everything the hearing must be timeous i.e., conducted within reasonable time of the alleged offence. Failure to have a timeous hearing must be supported by a sufficient reason.
Conclusion
An unfair disciplinary hearing can lead to a disciplinary action being deemed wrongful or a dismissal being considered unfair or unlawful. This would be brought about by the fact that the process prior would be procedurally unfair. As a result, employers may then be requested to compensate employees accordingly over and above costs to suits.
Contacts
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