Be thoroughly prepared for disciplinary hearings – or get taken to the cleaners by your employees
While acting as a CCMA arbitrator and chairperson of disciplinary hearings, I have noted numerous reasons why employers lose dismissal cases at the CCMA. More often than not, the charges should never have been brought.
This is because:
- The employer took disciplinary action for personal reasons rather than because the employee did not comply with the employer’s rules or performance standards,
- There was insufficient evidence against the accused to justify a guilty finding or a dismissal,
- There was sufficient evidence but the employer failed to present:
- All of it at the disciplinary and/or arbitration hearing, and
- The evidence in a proper manner to enable the chairperson/arbitrator to find in the employer’s favour.
Employers don’t prepare properly for hearings
The reasons for this include that the employer does not:
- Want to spend the required time to carry out proper preparations for the hearing, and
- Know how to prepare properly for a disciplinary and/or arbitration hearing.
However, where the manager responsible for bringing the case to the CCMA, on behalf of the employer, does not prepare properly, there is a strong likelihood that the CCMA arbitrator’s decision will go against the employer because he must prove that the employee was guilty and that this employee deserved to be dismissed because of the misconduct.
For this reason, it is vital that all managers and other staff responsible for discipline have a proper understanding of how to prepare for, and present, a case at a disciplinary or arbitration hearing.
Follow these 9 steps when you prepare for a hearing:
1. Assess the allegations to establish if these have been brought in good faith or the accuser has a hidden agenda,
2. Investigate the circumstances of the alleged incident(s),
3. Assess the circumstances leading up to and surrounding the alleged misconduct,
4. Evaluate the evidence gathered in the investigation to establish if it constitutes proof,
5. Formulate the charges to be brought against the accused at the disciplinary hearing,
6. Establish who will present the evidence at the disciplinary or arbitration hearing,
7. Decide which witnesses and other evidence will be used,
8. Prepare questions to be used to cross-examine the evidence brought by the accused, and
9. Prepare 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 an unauthorised absence from his workstation and falsifying timesheets.
- During the disciplinary hearing, the employer cross-examined the employee’s evidence but certain answers that he and his witnesses gave were not clear.
- The employer did not get clarity on some of the key evidence against the employee.
- 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 on behalf of their member.
- As the evidence presented against the employee at the disciplinary hearing was very ambiguous, the employer had to hire a labour law expert.
- 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. Such a victory for the union could have resulted in a disastrous industrial relationship at the workplace.
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Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . |
