In South African Labour Law, the Labour Relations Act specifically states that every person who is going through a disciplinary hearing or a misconduct allegation – they have a right to procedural fairness. The purpose of procedural fairness is to give the person who’s going through a disciplinary hearing a fair opportunity to put their case forward, to the chairperson at the internal hearing before it goes to the CCMA.
Important aspects of procedural fairness at the disciplinary hearing stage?
Number one
You have a right to be informed of the date, time and place of the disciplinary hearing in advance. How much of time should you get? Not less than 48 hours.
Number two
At the disciplinary hearing you have a right to state your case. Once the employer states his case, you need to be allowed a chance to state your case.
Number three
You have a right to cross-examine the witnesses or documents that are being brought by the employer. If they are accusing you of doing something wrong, it is your right to stand up and say I’m going to ask you questions about that.
How to cross-examine?
Write down in detail your story, leaving no details out. It is important to know your story in and out as you must not have any vague details. The date, time place, witnesses and documents is required be taken note of to reference to.
The opposing sides case needs to be taken down: The allegations against you, the witness they may have. What documents do they have? Analyze the part of their case that is different from yours. Maybe it is the witnesses statement that is the turning point of their case.
When you have that witness on a cross-examination ask them for the details regarding the dispute, with reference to what they saw. Asking the witness if it is possible that your version is true? Have they considered your version?
If you have a written statement which contradicts their testimony you can use that as well. This is a powerful tactic to get somebody’s testimony discredited.
Be very firm, there’s a time to be friendly and polite to people, cross-examination is not one of those times. During this time you need to stand up for your rights and you need to tell the other person I believe that you are trying to discredit me!
Number four
You have a right to have a fair and neutral chairperson. The chairperson deciding the outcome at the disciplinary hearing, needs to be looking at your case from an objective purpose with no bias towards either the employer or the employee.
Number Five
You have a right to get the outcome of the disciplinary hearing in writing.
