Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting.
While acting as a CCMA arbitrator and as the chairperson of disciplinary hearings over the past years I have noted that, in many cases, employers lose because the employer either does not want to spend the time necessary to prepare properly for the hearing or it does not know how to prepare properly.
This is extremely dangerous because the employer has the full onus of proving that the employee was guilty and that the misconduct merited dismissal as opposed to less drastic and more corrective disciplinary step.
The steps for preparing a case include:
- Assessing the allegations to establish whether they have been brought in good faith or whether the accuser has a hidden agenda
- Investigating the circumstances of the alleged incident(s)
- Assessing the circumstances leading up to and surrounding the alleged incidents of misconduct
- Evaluating the evidence gathered in the investigation to establish whether it constitutes proof or not
- Formulating the charges to be brought against the accused at the disciplinary hearing
- Establishing who will present the evidence at the disciplinary or arbitration hearing
- Deciding which witnesses and other evidence will be used
- Preparing questions to be used in order to cross-examine the evidence brought by the accused
- Preparing a draft closing statement.
In the unreported CCMA case of Mahlangu vs Hernic Ferrochrome the employer dismissed the trade union’s chief shop steward for unauthorised absence from his workstation and falsification of timesheets. During the disciplinary hearing the complainant did not cross-examine the accused employee’s evidence properly. Despite this, the chairperson found the chief shop steward guilty and dismissed him.
As the employee was one of the trade union’s senior office bearers the union took the matter to the CCMA. Preparation for the arbitration hearing was a highly complicated exercise because of the ambiguities of the evidence presented against the employee at the disciplinary hearing. This necessitated the employer hiring a labour law expert in order to deal with these added complexities of the case. While the CCMA eventually found in the employer’s favour it was a very close call. Had the labour law expert not been able to do a great deal of fancy footwork in papering over the cracks of the disciplinary hearing the chief shop steward would have been reinstated with many months back pay.
This indicates the crucial need for expert preparation for and presentation of evidence at a disciplinary hearing.
Details:
To attend the 24 July 2015 seminar in Johannesburg on MANAGING DISCIPLINE please contact Ronni on ronni@labourlawadvice.co.za or on 0845217492.
