Vanessa Botha

Vanessa (BCom Hons, University of the Witwatersrand) is the Training Manager at Conflict Dynamics. In this capacity, she manages client relationships and marketing and is also actively involved in the design and development of our training materials. She also facilitates a number of our training courses and workshops. She is an experienced consultant in the areas of Labour Relations and Learning and Development and was previously a part-time lecturer at the University of the Witwatersrand’s Business School and Faculty of Commerce for 17 years.

Why would an employer dedicate the time, effort, and multiple resources required to hold a workplace disciplinary hearing? There is only one logical and valid response to this question – that the employer believes that an employee has committed such serious misconduct that it could warrant bringing the employment relationship to an end, the most serious of disciplinary sanctions. In such circumstances, surely the last thing that the employer will want to be faced with is a situation where, following a dismissal, the CCMA or Labour Court ultimately finds against the employer and the employee is either reinstated or is awarded financial compensation for unfair dismissal.

And yet many employers find themselves in such a situation. Why? Most often because the allegations against the employee have not been thoroughly and properly prepared before and presented during the disciplinary hearing.

Not simple common sense

The basic premise of all workplace disciplinary hearings is that an employee is innocent of the charge/s against them until proven guilty on a balance of probabilities. The onus of proving the case against the employee sits squarely with the employer.

Understanding what is required of one as a participant in a disciplinary hearing is not simple common sense. In particular, the chairperson and initiator (employer representative) in a disciplinary hearing require very particular knowledge and skill in order to carry out their duties appropriately.

The Initiator (Employer Representative) makes or breaks the case

Much is made of the importance of the chairperson in a disciplinary hearing. But, truth be told, it is the Initiator who makes or breaks the employer’s case. An Initiator who is unprepared and/or ill-equipped to present the necessary evidence and argue the case effectively will severely limit the chairperson’s options with regard to the finding, or could well be the cause of a devastating loss at the CCMA or Labour Court down the line.

The Initiator’s responsibilities are extensive

The Initiator has sole responsibility for the following critical steps and procedures prior to a disciplinary hearing:

1. Conducting a thorough investigation of the alleged misconduct. This includes:
   1. Interviewing all possible witnesses and other relevant parties and taking statements.
   2. Gathering all relevant evidence (e.g. documents, video footage, relevant items, etc.).
   3. Assessing the authenticity and admissibility of the evidence gathered.
   4. Probing and investigating further where witnesses have provided differing versions of events.
   5. Encouraging key witnesses to testify in a disciplinary hearing.
   6. Ascertaining how past similar incidents have been addressed to ensure consistent application of discipline.
   7. Objectively evaluating all information gathered via the investigation to determine whether a formal disciplinary enquiry is ultimately warranted or not.
2. Formulating the appropriate charge/s against the employee.
3. Notifying the accused employee of the hearing and explaining the employees’ rights to them.
4. Strategising the case on behalf of the employer by:
   1. Deciding on the conceptual approach to the case by carefully assessing the substantive elements of the case against the available evidence.
   2. Anticipating the employee’s case and preparing to counter their defence.
5. Preparing for the hearing:
   1. Choosing appropriate documents and other evidence to present in the hearing.
   2. Choosing appropriate witnesses to call in the hearing.
   3. Preparing for examining the employer’s witnesses.
   4. Prepare for cross-examining the employee’s witnesses.
   5. Preparing an opening statement.
   6. Preparing a draft closing statement.
   7. Preparing a bundle of relevant documents to be presented in the hearing.

Once the hearing commences, the Initiator will have the following additional responsibilities to fulfil during the hearing:

1. Presenting an opening statement.
2. Presenting documentary and other relevant evidence
3. Dealing with witnesses:
   1. Examining the employer’s witnessing
   2. Cross-examining the employee and their witnesses
   3. Re-examining witnesses
4. Presenting a closing statement
5. Arguing in aggravation of sanction (if required)

High-quality, practical, skills-based training is critical

Given the wide range of technical responsibilities of the Initiator as set out above, it goes without saying that high-quality, practical, skills-based training is critical for all managers or supervisors who might be called on to initiate (or indeed to chair) a disciplinary hearing.  

In the matter of Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others, the reliability of breathalyser testing to prove the contravention of an employer’s zero-tolerance alcohol and drugs policy was called into question. The employee had tested positive for alcohol on three breathalyser tests on two different machines, but a subsequent blood alcohol test yielded a negative result. The court determined that the employer had failed to prove that the employee was positive for alcohol as the evidence relied upon (the breathalyser tests) was overridden by the more reliable blood alcohol test. The employer, in this case, failed to make an informed decision on the reliability of the evidence that they were relying on to prove the charge against the employee. The consequence down the line was a finding that the employee’s dismissal was unfair with retrospective reinstatement ordered.

CCMA arbitration awards and Labour Court judgements are littered with examples of cases lost by employers due to poor preparation and lack of knowledge or understanding of the critical responsibilities of both Employer Representatives and Chairpersons of disciplinary hearings. Employers are therefore well advised to heed the following words of the late Queen Elizabeth II:

Conflict Dynamics has 26 years of experience in delivering training on all matters pertaining to the management of workplace discipline. The following are examples of courses offered, which are customised to the client’s working environment, policies and procedures.

• Preparing for and Presenting a Case in a Disciplinary Enquiry
• Chairing a Disciplinary Enquiry
• Assessing and Presenting Evidence Appropriately in a Disciplinary Enquiry
• Managing Discipline, Performance and Disciplinary Enquiries Online

Contact us to find out how we empower your managerial staff to skilfully manage disciplinary hearings, because “Having an understanding of the 'why' will help with having an understanding of the 'how'.” Bobby Darnell