May 16, 2022

Sarah* is employed by a big corporate law firm. She really loves her job as it has a good salary, which allows her to take care of her two daughters as a single parent. Her employer recently gave her an important task which was due for the next day. The next morning while getting ready for work, she realised that her youngest daughter had a severe fever and was feeling weak. She immediately rushed her daughter to the hospital and sent her employer a text message advising him of the situation and that she would not be able to make it to work that day.

Upon her arrival at work the next day, she was served with a notice to attend a disciplinary hearing and charged with insubordination due to her failure to meet the deadline. Sarah is extremely upset by this and has a few questions which she hopes the answers will help her during the disciplinary proceedings.

What is a disciplinary hearing and does this mean the employee will be fired?

>     A disciplinary hearing is an internal process whereby Sarah (as the employee) and her employer (“parties”) will address the charges in the disciplinary notice before an independent, objective and neutral person (“chairperson”).

>     During this process, both parties will be able to bring evidence in support of their cases and explain their version of events.

>     Based on the versions and evidence brought by the parties, the chairperson will then make a finding and, if necessary, recommend the disciplinary sanction to be imposed on Sarah (for example, a warning, final warning or dismissal based on the employer's disciplinary code).

>     As such, the disciplinary hearing does not necessarily mean that she will be fired.

What is the purpose the disciplinary notice?

>     The purpose of the disciplinary notice is to give the date, time and venue of the hearing, as well as to advise the employee of their rights.

>     Most importantly, the notice must clearly set out the charges with enough details to allow the employee to prepare for their case.

Who will be involved in the hearing and is a lawyer allowed?

>     The hearing will involve Sarah and the employer's representative, as well as the chairperson and the witnesses of both parties (if any).

>     Since the disciplinary hearing is an internal process, lawyers are generally not allowed to attend the disciplinary hearing. However, should Sarah be a member of a trade union, she may bring her trade union representative.

>     If Sarah does not belong to a trade union, she may also be represented by a fellow employee, for example, a fellow employee she trusts with a legal or labour law background.

What requirements must the employer prove the alleged misconduct?

>     The employer will have to prove, on a balance of probabilities, that there is a rule (“policy”) in the company and Sarah was aware of the policy.

>     It must further be proved that the policy is lawful and reasonable, and consistently applied throughout the workplace, and that Sarah contravened the policy.

>     The employer must also prove that similar action (“sanction”) was taken against other employees that committed the same offense, and that the requested sanction would be appropriate in Sarah's case.

What type of evidence can be brought to defend the employee's case?

>     The main purpose of the disciplinary hearing is for both parties to bring evidence in support of their cases and to argue their versions.

>     This means that Sarah may bring any evidence she thinks will help her in her defense, for example, documents, audio and video recordings, written statements or oral evidence from fellow employees.

>     In Sarah's case, it would be vital to bring a written statement/note from the doctor or hospital that treated her daughter, as well as the text message she sent notifying her employer that she would not be able to make it to work that day.

>     She may also produce a copy of the policy or notice that sets out the procedure to follow in instances when employees cannot make it to work, in order to prove that she followed the correct procedure.

>     Even where the correct procedure was not followed, she can provide evidence that proves that there were compelling reasons to deviate from the policy or notice, for example, a statement/note from the doctor or hospital. She may also bring oral evidence from a fellow employee that proves that the policy or notice was not consistently applied.

>     The evidence from both  parties will be considered by the chairperson in order to decide whether the employee is guilty of the charges or not. 

Can the employee cross examine the employer or witnesses?

>     Yes, Sarah should be provided with an opportunity to cross-examine her employer, as well as the witnesses for the company. This will be done after her employer stated their case and provided evidence in support.

>     If she is not granted the opportunity to do so, the hearing will not be found to be procedurally fair.

If the chairperson finds the employee to be guilty, what factors can be used to motivate for a sanction other than dismissal?

>     In general, the employee will be given an opportunity to provide evidence in mitigation in response to the employer's evidence in aggravation.

>     There are various aspects that can be raised in mitigation and it will depend on the specific circumstances of the matter. For example, Sarah may use the fact that she has no prior disciplinary actions against her, her years of service and loyalty to the firm, and the fact that she is a single parent widow who needs the income to take care of her family and for medical expenses.

Can the finding be appealed?

>     After considering all the mitigating and aggravating circumstances, the chairperson will decide on the appropriate sanction (such as warning, final warning or dismissal).

>     If the sanction is one of dismissal, it must be procedurally and substantively fair. This means that the hearing must have been carried out in a fair manner, allowing both parties to fairly represent and present their respective version, and the correct law or company policy must have been fairly applied to the facts.

>     If Sarah believes that this is not the case and that the dismissal was unfair, she may initiate an internal appeal (if the employer's policies allow for same).

>     She may also refer the dispute of unfair dismissal to the Commission of Conciliation, Mediation and Arbitration (“CCMA”), or an appropriate bargaining council with jurisdiction, which must be done within 30 days.

Although the above scenario is just one of many scenarios and possibilities that an employee may be faced with, it does highlight that a fair reason must exist and a fair procedure must be followed during disciplinary proceedings.

Did you know…An unfair dismissal to the CCMA or bargaining council must be referred within 30 days from the date of dismissal.

*The use of this name is fictional and for illustrative purposes only.