Trouble at work? These are your rights when facing a disciplinary hearing

Your rights at a disciplinary hearing at work is something every employee should know to ensure that it is run according to law and that you have a fair hearing.

Fairness is then also your most important right at a disciplinary hearing, says Michael Opperman from Omni labour Consultants.

“In labour law, there are two rights of fairness; where it firstly covers the process, normally referred to in labour law as procedural fairness. Secondly, the right to fairness is entrenched in the substance or reasoning in the rationale or argument.”

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Procedural fairness

The procedural fairness of a hearing includes:

• That the employer notifies the employee of the allegations using a form and language that the employee can reasonably understand. “Some employees are articulate but others are illiterate and the challenge is to gauge how much of these allegations the employee understands. There are 11 official languages and if the employee does not speak English then a translator should be used. It is important that the employee can follow the hearing.
• That the employee can exercise her or his right to tell his or her side of the story and state a case in response to the allegations.
• That the employee has reasonable time to prepare. If the allegations are not too complex, 48 hours from the notice of enquiry to the hearing will be sufficient, but more time must be allowed for complex evidence.
• That the employee can exercise his or her right to representation by a shop steward if there is a representative union and /or a colleague. In addition, if the employer uses an attorney to lead the case as initiator, the employee can also have an attorney to represent her or him. “The playing field should always be levelled.”
• That the employer formally communicates the decision taken to the employee.

The substantive issues of the allegations must be determined in the hearing by establishing whether or not the employee contravened a rule or standard. Was the standard reasonable and could the employee have been aware of the standard? In addition, is dismissal appropriate? The employee has the right to be tested against these criteria.

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Your rights at a disciplinary hearing

This essentially means that the employee has the right to:

• A hearing that is procedurally and substantively fair and where both versions of the argument are heard.
• Clear standards and that these standards must be made available to the employee.
• Corrective action from the employer before a dismissal, but this would be subject to the gravity of the transgression.
• Call witnesses and to cross examine the witnesses of the employer.
• Not be victimised as a result of exercising the right to defend an allegation.
• Lodge a dispute with the CCMA or an appropriate Bargaining Council if he or she feels that they have been treated unfairly, either substantively or procedurally.

“It is common cause that an employee would receive a lesser sanction for a lesser or first offence. If the allegations are very serious then dismissal might be immanent, even as a first offence,” Opperman says.