Labour Law
Initiating a disciplinary hearing (part I)
Labournet
It is crucial that company representatives who are tasked to initiate a disciplinary hearing are knowledgeable about what is required from them in order to successfully present the company’s case to the chairperson. The same skills can be utilised when representing the company at arbitration, as arbitrations are hearings de nova (new hearings).
Incident:
A disciplinary process usually begins with an incident that has occurred. For example, (1) the employee submits time sheets which are found to incorrectly reflect the actual time worked by the employee; or (2) the employee fails to attend work and fails to inform the company of the reasons for his absence; or (3) the employee becomes aggressive towards his supervisor when instructed to do a certain task; etc.
Allegation:
From this incident, certain allegations can arise. In relation to the examples above, these could be (1) that the employee has submitted fraudulent time sheets; or (2) that the employee’s absence is unauthorised and without permission; or (3) that the employee was insolent or insubordinate.
Investigation:
The company complainant must now investigate the facts surrounding the incident to determine whether, on face-value, these allegations can be supported. This can be done by gathering relevant and reliable documentation or by interviewing witnesses to the incident. It is preferable, at this stage, to verify the authenticity of the documents and to record the witness’s version in the form of a written statement (or if possible, an affidavit).
Identifying the charge:
The company complainant must now identify the appropriate charge that pertains to the allegation. In relation to the example above, these could be (1) fraud or supplying false information; or (2) unauthorised absence or failing to produce a medical certificate; or (3) insolence or insubordination.
It often happens that a single incident could be related to various charges. It is, however, not acceptable to charge an employee with multiple charges when the same facts will be required to proof these charges. This is called the impermissible splitting of charges. If the chairperson finds the employee guilty of all the charges and then states that because the employee committed all of these offences, a more severe sanction would be appropriate, the decision could be found to be substantively unfair. I t is thus preferable that the company complainant chooses the charge which he believes he has the best prospects of proving.
This is done by considering the elements of the charge and relating the evidence on hand to the charge. Each charge may have different elements,
e.g. a charge of fraud requires an intentional misrepresentation of a true set of facts that led to actual or potential prejudice to the company. The elements of such a charge are thus (1) unlawfulness, (2) misrepresentation, (3) intention to deceive, and (4) prejudice or potential prejudice to the company. On the other hand, supplying false information requires only that there was (1) a misrepresentation, and (2) that the employee had to have known that the information was false yet still submitted it. Unlawfulness and prejudice are thus not necessarily elements of the second option.
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