This is a complete guide to Disciplinary Hearings at work in South Africa.
In this guide you will learn:
- How to prepare for a disciplinary hearing
- How to present your evidence
- Your rights at the disciplinary hearing
- Lots more
Let’s get started.
Introduction
Hello and welcome. My name is Aslam Moolla and I am a registered Attorney at the National Legal Practice Council (Registration number 65753).
My team and I organised this guide to help you understand the Disciplinary Hearing Process in South Africa.
The practical steps are as follows:
- Go through the guide.
- After going through the guide – select which steps you will start on immediately for your case.
- If there are forms to fill in – fill them in – to get your case heard.
At the end of this process, we hope that you will be feeling more confident about where to get help. If you still require assistance on what to do, please reach out to us, and we will help you as much as we can.
Here is what’s to come:
Contents
Chapter 1 – What is a disciplinary hearing and the correct process for it
Chapter 2 – how to prepare for a disciplinary hearing (with free template)
Chapter 3 – How to handle witnesses at your disciplinary hearing
Chapter 4 – How to lead your evidence at the disciplinary hearing
Chapter 5 – What happens after the ruling – next steps for CCMA
Chapter 6 – Advanced tips for disciplinary hearings (postponement etc.)
Chapter 1:
What is a disciplinary hearing and what is the correct process for it
A disciplinary hearing is basically an enquiry held by the employer to determine whether an employee is guilty of an offence or not.
In other words, the purpose of a disciplinary hearing is to hear evidence to see whether a person committed any wrongdoing.
If the person is found guilty, then the chairperson will recommend a sanction.
The sanction can either be:
- A verbal warning, or
- Written Warning, or
- Unpaid suspension from work; or
- Dismissal
Before the disciplinary hearing can take place, the employer has to notify the employee.
According to the Code of Good Practice, the employer should give the employee atleast 48 hours’ notice of the hearing.
The employer must also clearly state:
• The date, time and venue of the hearing
• Details of the charges against the employee
Can you be represented at the hearing?
Yes the employee has a right to be represented at the disciplinary hearing either by:
- a fellow employee from work or
- a shop steward.
Actionable step:
In your own words, what are the key allegations made against you (Did your boss accuse you of stealing/ committing sexual harassment / not pitching up to work). Do you have a defence to that?
Let’s continue to how to prepare for a disciplinary hearing
Chapter 2 – how to prepare for a disciplinary hearing (with free template)
This section provides a detailed step by step guide on how to prepare for your upcoming hearing. Please have a pen and paper ready by your side as this will help you prepare.
Step 1: Understand what the charges against you
The first step is to list all of the charges against you. Next to each charge, you have to decide whether you are guilty or not. If you are not guilty of the charge, then will proceed to the next step.
Example: John is charged with theft – and he believes that he is not guilty
Step 2: What defence do you intend raising
For those charges that you have indicated not guilty, write down what defence you have against that charge. In other words, why should you not be found guilty?
Example for John on the charge of theft – not guilty – the defence is that he did not steal the bread because he was not at work on that day
Step 3: List the evidence that you have next to each of your defences
You do not have physically have the evidence but at least make sure that you have an idea of what evidence you intend using. This can take the form of witnesses or documents.
Example for John on the charge of theft – not guilty – the defence is that he did not steal the bread because he was not at work on that day. His evidence is the workplace register because on that day it shows he was not at work. So he could not have committed any theft.
To recap: what you are doing at this stage is making a note of all the allegations that are made against you and what your defence is to each allegation. This is a very important step.
Make sure to write your defence and what evidence you intend using to prove your innocence for each charge. Your preparation here will be critical as you approach your hearing date.
In summary:
- You have a right to be treated fairly by the employer.
- The employer can only dismiss you for a fair reason.
- The employer has to follow a proper procedure before dismissing you.
If you need help with this, you can purchase a paid consultation session with a certified Labour Lawyer who will help you prepare this. Click here to setup your appointment.
Now we move onto evidence and witnesses that you can use at your disciplinary hearing
Chapter 3 – How to handle witnesses at your disciplinary hearing
First identify if you need witnesses.
For example if your case involves something that needs to be proved and you have an eye witness or someone that confirm what you are saying is the truth, then you can call that person as a witness.
The next step is to speak to that person and politely ask them if they would be willing to help you. Remember that this person may also be afraid to testify because they do not want to risk losing their job. It’s best to handle this discussion in a calm and frank manner.
You will start with your questions first. Focus on what happened and why your version is true.
After you are completed, the other side will then get a chance to ask your witness questions. The purpose of these questions is to determine if your witness is telling the truth.
You may ask your witness questions again once the other side is complete. This is called re-examination.
Now we turn to how to present your evidence at disciplinary hearing
Chapter 4 – how to present your evidence at the CCMA
Make sure you attend the hearing. If you miss the hearing, then it will probably take place in your absence.
If you cannot make it for the hearing, then be prepared with valid grounds (like a medical certificate) explaining why you could not be there.
Also it is highly recommended that you notify the employer in advance that you cannot make it to the hearing. Instead of not showing up at all and not notifying anyone about either.
Remember to be calm. You are there to present your case in the best light possible. If your emotions get the better of you – it will be more difficult for you to win your case.
Give your opening statement
The purpose of the opening statement is to explain your case and why you should not be found guilty.
An example of a good opening statement is the following:
“Hello Chairperson. My name is John from Durban. I am here to defend myself against the charges that are brought against me. I have been with the company for 2 years in the position of Admin Manager. I believe that these charges are without merit. And if I am not successful here, I will approach the CCMA for help because it is my legal right to do so”
Hear the evidence led by the employer
Make sure to ask questions on what the witnesses’ against you are saying. Focus on the facts of the case. Check dates, times, version of events etc. Write their testimony down and cross examine them fully.
Lead your evidence
After the employer has had a chance, it will be your turn. Start with your strongest evidence first. In other words, if you have a witness, call that witness.
If you have documentary proof then hand up copies. Always lead with your strongest evidence first. Then you can build your case on that.
When its your turn, do not hesitate to lead your evidence on why you are innocent. This is all the documents and witnesses that you noted above.
What kind of questions to ask at the disciplinary hearing?
Ask questions that will prove your innocence. In other words, choose questions that show your case is true and the employer’s case is false.
Example questions are: how did you know? Why did you assume this?
Now we move onto how the CCMA can actually help you.
Chapter 5 – what happens after the ruling – next steps for CCMA
If the employer did not have a fair reason to fire you and they did not follow the correct procedure, then you have a good chance of winning the case at the CCMA or Bargaining Council.
You may have to go to the Bargaining Council and not the CCMA. This depends on the industry you are working in, you will have to contact the CCMA or the respective bargaining council if there is one in your industry.
For clarity on whether it should be the CCMA or a bargaining council, you may approach the CCMA directly and/or phone the national call centre on 0861 16 16 16.
Please read further below for a detailed step by step guide on how to refer your case to the CCMA or Bargaining Council.
Step 1: Get your case registered
The first step is to get your case registered at the CCMA.
Practically, go to your local CCMA (check their website for one closest to you) and ask for a CCMA case referral form (also known as LRA Form 7.11.). These forms are available from the CCMA offices and from our website. Once you have the form, fill in the information as shown on the form.
Step 2: Deliver a copy of the referral form to your ex-employer
Once you have completed the form, you have to deliver a copy to your ex-employer.
This can be done via fax, registered mail, and courier or delivered in person.
It’s very important that you are able to prove that a copy was delivered to them – in case they say they did not get it. So keep a copy of proof that you served the form.
Step 3: File your referral form at the CCMA and attach proof of delivery on the employer
You do not have physically deliver the filled in referral form to the CCMA. You can also fax the form or post it back to the CCMA.
Make sure that a copy of the proof that the form had been served on the ex-employer is also attached.
Step 4: Wait for a hearing date from the CCMA
The CCMA will inform both you and the ex-employer as to the date, time and venue of the first hearing – which is usually conciliation.
Step 5: Attend the Conciliation hearing
Conciliation is a flexible and informal process to see if the case can be settled between the parties. No evidence is lead.
If no settlement agreement is reached, the CCMA Commissioner will issue a certificate stating that the case is unresolved at Conciliation stage. The next step in arbitration.
Tip: Try and settle your case at conciliation because the settlement is still in your hands. Once it goes to arbitration, then its in the Commissioners hands.
Step 6: Fill in the request for Arbitration form
If the case was not settled, you must set it down for arbitration.
Arbitration is similar to how the disciplinary hearing is held.
Chapter 6 – Advanced tips for disciplinary hearings (postponement etc.)
HOW TO POSTPONE A DISCIPLINARY HEARING
You have received your notice of disciplinary hearing from the employer. It has a time and date on it.
What if due to circumstances, you cannot attend the hearing on the day. Can you still be fired?
You cannot deliberately avoid the hearing, it will happen in your absence and you will probably be dismissed. Therefore do not miss the hearing unless you have valid grounds.
The following is generally considered as valid grounds:
- A genuine illness. Important: make sure that you have a medical certificate or proof that you were ill.
- A family emergency: The chairperson should request sufficient proof of this, such as a death certificate, or doctor’s certificate.
If you state anything other than the above, you may risk losing the case by default.
If the hearing date has passed, contact the HR officer of your ex-employer and indicate the situation.
Make sure you have proof sent to them. Indicate that you want a date because you could not be available on the day of the original hearing.
In summary:
- You have a right to be treated fairly by the employer.
- The employer can only dismiss you for a fair reason.
- The employer has to follow a proper procedure before dismissing you.
Can I go straight to the CCMA after my dismissal?
Yes once you received formal notice in writing that you have been dismissed, please proceed to your nearest CCMA to lodge your case.
Good work. You preparation is complete. We covered
- How to prepare for a disciplinary hearing
- How to present your evidence
- Your rights at the disciplinary hearing
Essentially your preparation is now complete. You have all your bases covered.
Please review the article above. In our experience it is very important to make sure you understand the process and your rights.
We believe that the better prepared you are – the better chance you will have of succeeding in your case.
We also prepared detailed articles like this on the CCMA process which covers at conciliation and arbitration. Click here to read that.
If you have a question or topic that you want us to cover, send us an email on ______. Please keep it to 3-4 paragraphs detailing your situation.
We get a lot of emails from the internet and from our paying clients, so please give us a few days to respond. Please be patient and we will get back to you.
However, if you want help immediately you can purchase a paid consultation session with a certified Labour Lawyer.
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Now we would like to hear from you
Conclusion
We hope you found this disciplinary hearing guide helpful.
Now We would like to hear what you have to say:
Which tip from today’s post do you want to try?
Are you going to challenge the charges?
Or maybe you are a business owner that has a question.
Either way, let us know by leaving a comment below right now.
