PROFESSIONAL DISCIPLINARY HEARING CHAIRPERSON
It is an historical fact that approximate 70% of all cases referred to the CCMA are lost by employers. Reasons for the great imbalance are ascribed to either the incorrect procedure used or that insufficient reason was present for a dismissal. We believe their are many other reasons for this occurance, one of which in our opinion is management's lack of understanding of the legal requirements of employment and dismissal law.
Bearing in mind that when a case is referred to the CCMA / Bargaining Council only Lawyers / Advocates may represent the parties. So it would be most unwise for one of the parties to attempt to go up against a legally trained person when attempting to defend the case. Should this case be further referred to the Labour Court, only advocates and a judge will further contend the case. Yet, all these legally trained persons will be judging a case that was based on the decision of a manager in the workplace who is not expected to have any legal training nor any experience in respect of current labour case law. Its no wonder companies loose 70% of there cases at the CCMA. Notwithstanding, the LRA indicates as follows:
Employers / Management be Warned
The Labour Relations Act, section 138(1) states:
“The Commissioner must conduct the arbitration in a manner that he / she considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities”.
Even though this section advises the use of "minimum legal formalities", employers and management are warned to be vigilant when dealing with employees during the disciplinary process. Circumstances may very well be greatly different when the Commissioner at the CCMA or Bargaining Council exercises his / her right to adopt a more formal approach. It must also be remembered that when a case is referred to the Labour Court, (which is the equivalent of the Supreme Court), judges and advocates will judge the decisions and procedures used by the employer during the disciplinary process when adopting the "minimum of legal formalities".
The
Labour Relations Act - Schedule 8 (Code of Good Practice:
Dismissals) - Section
4(1)
This section of the Act suggests that the employer adopt the minimum legal requirements, it is supposed that the reason for this is that the employee will be able to understand the prococeedings. The section is broken down for the purpose of dissecting the intention and purpose:
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"Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry". |
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"The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand". |
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"The employee should be allowed the opportunity to state a case in response to the allegations". |
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"The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee". |
The meaning of this section is quite clear in its intention and requires that the employer adopts the minimum legal formalities when dealing with disciplinary matters and therefore the strict rules of evidence do not have to be applied when hearing the case.
It also further suggests that the employer may accept written statements / affidavits as evidence at disciplinary hearings and the employer may assume that under these circumstances they may adopt a more relaxed attitude toward the admissibilty and acceptance of evidence during the hearing.
Based on these circumstances, the employer may reach a finding based on the above and decide there is sufficient evidence to dismiss, only to find that this decision is overturned, resulting in a award up to the value of 12 months remuneration.
Professional Disciplinary Hearing Chairperson
As labour consultants, we are able to provide Disciplinary Hearing Chairperson services to companies that require an independant professional who will ensure that the rights of the company are protected and ensure maximum reduction of risk in terms of any awards that may have been awarded. Our extensive experience has been gained in labour relations over the past 25 years. We operate in both commercial and industrial environments.
Our Hearing Chairpersons are fully trained and we have adopted a secure and safe procedure. It is our practice to approach senior management on the conclusion phase of the hearing and then to recommend further action based on the evidence and facts in evidence. A mandate is requested, the hearing recommenced and concluded as per mandate. It is our practice to process a disciplinary hearing as follows:
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We receive the brief from the company to act as Independant Disciplinary Hearing Chairperson. |
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We request copies of the company's Disciplinary Procedures, Employee Rules and Regulations and any other relative policy and procedures. |
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A standardised hearing checklist, based on current labour, case and employment law is used. |
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Rules of evidence are practiced to a standard that may be seen as more formal to ensure that substantive fairness issues are exercised and that the company's interests are safeguarded. |
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Throughout the hearing strict discipline is exercised, giving due regard to procedure and the calling of evidence and witnesses, to ensure procedural fairness. |
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Findings are reached and based on current and relative case law as well as Schedule 8 of the LRA - Code of Good Practice: Dismissal. |
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A verbal report is submitted to the employer recommending a sanction. |
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On conclusion of discussion, further instructions are received from the employer, the hearing is then recommenced. |
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The employee's further rights are explained in terms of the Act and the hearing concluded. |
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A record of proceedings, along with our invoice is generated and handed to the company. |
Should you require any further details or assistance you are kindly invited to contact us.
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