HR Pulse

Legal developments in disciplinary procedure

You do not need to use the criminal model of a trial when you deal with disciplinary enquiries. Companies spend large amounts of resources and time conducting disciplinary hearings as though they were criminal trials. Complex charge sheets are drafted and hearings are held where, for example, witnesses are led and documents are discovered.

This is precisely what occurred in the unreported case of Rand Water v Buckle and Stoop:

• Buckle and Stoop were charged with defrauding Rand Water of R8 million.
• A complete forensic investigation was conducted by a forensic accounting company and a report was drawn up by the investigator. 
• Buckle and Stoop were subsequently called to a disciplinary hearing. In an attempt to drag out the proceedings, requests for the discovery of documents were repeatedly made. 
• Buckle and Stoop were initially represented by the same advocate. After realising that there could be a potential conflict of interest the matter was postponed to allow Stoop to arrange for separate representation. 
• On resuming the hearing, Buckle's representative asked that the chairperson be recused because he had a relationship with Rand Water. 
• Stoop's representative supported the application but the chairperson refused.
• Stoop's representative subsequently asked for Buckle's representative to be recused because he had previously represented Stoop and knew his version of events. 
• In response, Buckle's representative asked for Stoop's representative to be recused because Buckle had consulted with Stoop's representative before appointing his own representation.

The chairperson proceeded with the hearing – without legal representatives for Buckle and Stoop, and questioning the witnesses himself - and found both Stoop and Buckle guilty of fraud.

The judgment illustrates that the criminal model of conducting disciplinary enquiries are becoming a thing of the past.

Aadil Patel is the director and national practice head: Employment at Cliffe Dekker Hofmeyr.