A challenge of any dismissal for misconduct stands on two pillars: Substantive fairness and procedural fairness. This article deals with the elements related to procedural fairness in the context of disciplinary hearings. It will evaluate the rights and obligations of the parties during a disciplinary hearing.

What Are The Obligations of Employers?

Disciplinary processes should be guided by section 8 of the Labour Relations Act which is titled the Code of Good Practice: Dismissal (“the Code”). In addition to the Code, case law has developed the obligations of employers when convening disciplinary hearings which include:

1. Notification of Allegations: This should be in a form and language that the employee understands.
2. Reasonable Time to Prepare: The employee should be given time to prepare a defense to the allegations. There is no minimum requirement in law, but the standard practice is 48 hours.
3. Opportunity to Make Representations: The employee should be given an opportunity, during the disciplinary hearing, to state his or her case.
4. Right to be Assisted by a Colleague or Trade Union Representative: Employees have an automatic right to be assisted by a fellow employee or trade union representative, if applicable.
5. Obligation to Inform Employee of the Outcome: Employers must inform the employee of the outcome. It does not have to be in writing, but it is preferable as per the Code.

 The Rights Employees Have

In addition to the rights given to employees as a result of the employer’s obligations, employees have the following rights:

1. Right to Obtain Clarity on Vague Allegations: Allegations should be specific enough to allow you to prepare a defense. If you are not sure what the allegation pertains to, you have a right to ask for additional information.
2. Right to Apply for Legal Representation: Employees have a right to make an application for representation regardless of whether the notice or the Employer’s policies prohibit this application. A chairperson must consider the application and decide based on the submissions made by the employee and employer.
3. Right to Call Witnesses: You have a right to call witnesses to provide submissions during the hearing. Whilst you do not need permission from the employer regarding who you want to call, you may need to make arrangements with the employer to ensure that your witnesses are available. It is your responsibility to make sure the witnesses are available and are prepared to partake.
4. Right to Provide Evidence:  You have a right to provide evidence during the hearing like emails, documents, audio recordings, or anything else you think will assist you in your defense.

 Each of these rights and obligations can be nuanced depending on the circumstances. If you need advice on specific questions related to a disciplinary process, reach out to us.