The 4 things you need to know about disciplinary hearings
As an employer stepping into a disciplinary hearing with a staff member, you need to have the mindset of an attorney on Law and Order, with some top-notch legal savvy under your belt. You need to know detailed facts, be clued up about rights, and definitely have a spare pen. This is one time you really do want to be taking notes. If it’s not in writing, it doesn’t count.
We have answered the 4 most important questions for you so that you can stride in confidently:
A disciplinary hearing (or enquiry) is usually the final procedure before dismissal of an employee. This can be after a serious allegation (such as theft or fraud), or after repeated warnings. It involves the literal “hearing out” of both ends of the dispute so that a final decision can be reached.
The date for a hearing is usually set after all investigations into the case have been made. An allegation against the staff member needs to be backed up with evidence. For example, in the case of theft, the owner of the business (or a key decision maker) may interview witnesses, look at video footage, or arrange that employees take a lie detection test. If it is then concluded that the evidence is of such a serious nature that the employee should be dismissed, it is at this point that a disciplinary hearing is scheduled. The employee can be suspended (on full pay) pending the final outcome of the hearing.
The employee needs to be given at least one full day’s notice so that they have time to prepare their own evidence and arguments. Usually, anything between 2 and 4 days is considered good practice.
The following people need to be present: The complainant, employee in question (accused) and/or a representative on their behalf (must be a fellow employee from the same company), a secretary to take minutes, plus an objective Chairperson. The Chairperson must have no prior knowledge of the case, or of the outcome of any investigations.
The accused employee may have external legal representation (if the employer agrees – this is not a right). In this case, you need to be sure that the complainant and Chairperson both have the legal expertise necessary to cope with the level of an attorney or advocate. Some of them make Law and Order look like child’s play.
Although the hearing doesn’t need to be a formal process, legally speaking, it is suggested that it is held in such a manner so that there is no room for unnecessary disputes and unexpected curve balls later on.
This is the formal way to go about a disciplinary hearing:
- Inform the employee in writing of the date, time and venue of the hearing, as well as the exact allegations (what the incident involves, when and where it occurred, and who was involved).
- The more information you can provide the employee, the better. He needs to understand the details of the charges and why there is a hearing. This also enables him to prepare his response and defence properly.
- At the actual hearing, the Chairperson allows both the complainant and the accused to make an opening statement.
- After that, the first person called to speak is a witness in support of the charge. The accused (or their representative) can then question the witness. The complainant can also ask further clarifying questions if necessary.
- The accused employee can now testify himself and can also call witnesses (all of whom can be questioned by the Chairperson one-by-one).
- The Chairperson adjourns the hearing and then has time to go over the minutes and make his final judgement, which then needs to be presented in writing.
- If an employee is dismissed, they are entitled to appeal against this within 5 days of the decision. The date of dismissal is the day on which the employee is advised of the final outcome of the hearing. Any disputes in regard to the dismissal can be filed within 30 days of this date.
It is important that employers keep records for each employee that keep track of all warnings and disciplinary records. This is evidence of a staff member’s behaviour prior to a disciplinary hearing, and a valuable part of the investigation should one be necessary. The Chairperson and management need to consider not only the gravity of the misconduct, but also the employee’s circumstances, such as length of service and prior record.
Essentially, for both the employer and employee, the most important part of a disciplinary hearing is the facts. The more written evidence you can gather for your ultimate decision, the better. This is not only for a last-minute scramble during the 2 days you have before the hearing. If records are consistently maintained, it makes hearings that much more sound. No pun intended.