Lesson 1, Topic 1
In Progress

3.12. The fact that all relevant information is requested from the employer is demonstrated.

ryanrori January 12, 2021

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Misconduct in the workplace is not something any employer wants to have to deal with. Such activity results in animosity and hostility amongst employers and employees throughout and entire organisation if not properly managed.

Where allegations of possible misconduct in the workplace surface, such occurrences require strict and consistent attention, so as to ensure the right precedent is set. Disciplinary hearings are a necessary evil that each manager and organisation on a whole need to be well aware of and familiar to.

Managers, HR managers and employees need to have a thorough understanding of what a disciplinary hearing entails and how to prepare for such proceedings.

Without the correct application of such meetings and clear knowledge of the right way in which to deal with possible misconduct, employers are undoubtedly, even in the presence of a guilty party, held liable and accountable for the incorrect administration of disciplinary proceedings.

Addressing misconduct in the workplace falls on the employer’s shoulders and each organisation should have a clear and comprehensive process of operation when addressing disciplinary hearings. It is up to the employer to prove that a dismissal is the fair and just way forward and if ill-equipped to do so employers may end up with egg on their face and what’s worse, an untrustworthy or unreliable employee they now cannot get rid of.

On many occasions employers have attempted to manage the misconduct of defaulting employees but to the detriment of their lack of knowledge. Most commonly, employers fail in their attempts to dismiss a ‘delinquent employee’ because;

  • Unfair administration of disciplinary proceedings
  • Lack of relevant evidence
  • Failure to prove guilty in accordance to generally accepted policies and procedures
  • Failure to convince the chairperson of misconduct

Employers need to follow a systematic application when enforcing a disciplinary proceeding on any employee in a formal fair and transparent manner.

 When addressing misconduct in the workplace which will ultimately set a disciplinary hearing in motion the following preparation needs to be adhered to by employers;

1. Investigate the Accusations/ Suspicions or circumstances surrounding the Alleged Misconduct

After allegations or suspicions have been raised a full investigation and fact finding needs to be employed so as to gather relevant evidence of workplace misconduct.

2. Consider the Circumstances of Alleged Misconduct

After the initial investigation, further scrutiny of the situation needs to be exercised in order to consider such facts in the context in which they occurred.

Here employers need to consider the following;

  • Was a rule regarding the alleged misconduct broken?
  • Was this rule in fact in place?
  • Was this rule applicable in accordance to the employee’s individual employment contract?
  • Was the employee aware of the rule?
  • Was the rule consistently adhered to and enforced by the employer?
  • Is dismissal a fair and just response to the misconduct under review?

3. Evaluate the Evidence and Facts

Careful dissection of each fact found and the evidence of the alleged misconduct need to be administered. The how, the where, the why, the who and the what of the accused misconduct needs to be broken down and details in the most exhaustive manner.

4. Formulate the Charges

Employers are now required to formally record the charges and communicate these to the accused in a comprehensive and detailed manner. In doing so, the employer will be required to communicate a formal notice, in writing, to the accused in request for them to attend a disciplinary hearing no later than 3 days prior to the disciplinary proceedings.

When preparing this written notice, the charges to which the accused will be required to face need to be clearly formulated and communicated, along with expected attendees, the date, time as well as place of the disciplinary proceedings.

5. Selecting a Chairperson

Employers need to select a reputable chairperson to moderate during the disciplinary hearing. Often companies call on a labour law expert to chair and facilitate the disciplinary procedures so as to ensure correct conduct is adhered to. It is the chairperson’s responsibility to take minutes of the meeting which is another reason why an upstanding member of the organisation, legal department or 3rd party must fill this role.

6. Selecting relevant Evidence to Present

Employers need to order and consolidate relevant evidence pertaining to the allegations of misconduct so that a systematic and organised presentation of such detail will be followed during the hearing. Focussing on the most relevant and applicable evidence, employers are required to follow a sequential delivery of evidence in the face or workplace misconduct during a disciplinary hearing.

7.  Prepare Questions for Cross Examination

During a disciplinary proceeding the accused employee must be awarded the opportunity to state their case as well as question witnesses’ and contend allegations with their own questions and answers. Employers are required to prepare for possible answers to questions posed to them during cross examination by the accused as well as by the chairperson. Through thorough preparation, answers to possible questions and challenges should be prepared for in order to ensure a fair and just disciplinary hearing.

8. Prepare a Closing Statement

Employers now need to end off with a closing statement in the final proceedings of a disciplinary hearing. By summarising the evidence and re-defining the allegations, will reiterate facts covered and items discussed and ultimately strengthen a legitimate and just disciplinary hearing. Employers are required to close with a final statement with the solution they wish to proceed with and deem fit and a necessity for the most amicable and cordial outcome to a disciplinary hearing in the case of workplace misconduct.

Disciplinary hearings are something that all employers hope to never have to face but more than likely will endure at some point in time during their reign. The best and only way to proceed with fair and just persecution against employees suspected of misconduct is to do so with integrity, transparency and by following a systematic procedure.