There comes a time in every organisation when it is necessary to hold a disciplinary enquiry. It is important to note that the Chairperson at a disciplinary enquiry needs to be someone who is more senior than or at least equal in seniority to the accused.
As far as possible, he/she should be someone who is impartial and not aware of the facts of the case prior to the disciplinary enquiry.
At the very beginning of the disciplinary enquiry, the Chairperson must ensure, among other things, that:
- The accused has received a notice to attend the disciplinary enquiry;
- The notice was in a language the accused understood or it was translated to him/her;
- The accused understands the nature and consequences of the charges against him/her;
- The accused understands his/her rights (i.e. to call witnesses and lead evidence).
Briefly, the Chairperson will then ensure that the employer party puts forward its case via the prosecutor who will:
1. (i Put forward a summary of the case;
(ii) Call witnesses to corroborate this summary;
(iii) Cross-examine the accused and the accused’s witnesses.
2. (i) Allow the accused to cross-examine the employer’s witnesses immediately after they have given testimony;
(ii) Allow the accused to put forward his/her case (with witnesses) after the employer’s prosecutor has closed his/her case;
3. After hearing all the evidence the Chairperson will assess the evidence against and in favour of the accused and make a determination based on a balance of probabilities (i.e. Did the accused probably commit the misconduct of which he/she is accused?). This is in contrast to criminal law where the accused must be found guilty beyond a reasonable doubt.
We attach hereto a Chairperson’s Check List for your use in the future.
If you have any questions about other Labour or Land issues, contact McCarthy & Associates Attorneys on (033) 266 6170 or ad***@ma****.za .