You were just getting started when the employee raised three procedural objections and asked for a postponement. How should you respond? Can these objections be avoided? In this article we provide a breakdown of some common complaints that may delay the hearing process and how to address them.
- I don’t understand the charges
Although the Labour Relations Act 66 of 1995 (“LRA”) does not require technical ‘charge sheets’ these have become the norm. But can we expect everyone to know what is meant by “misappropriation” or “insubordination”?
It is appropriate to use these terms but, importantly, they must be accompanied by a clear statement of the facts that gave rise to the charge. Be specific: What date did the misconduct occur on? What did the employee do or fail to do? What was the employee’s alleged intention? What harm was caused or potentially caused? If a specific written policy or procedure has been breached, specify the policy and the relevant section.
- I haven’t had enough time to prepare
Forty-eight hours’ notice of hearing is considered sufficient as a general rule. But do not blindly apply this without regard to the practical realities. Giving notice of hearing over a weekend may make it impossible for an employee to access the documents or witnesses they need. Equally, 48-hours means very little to an employee who is not suspended and must continue to work throughout this period. We prefer to say that an employee should have at least 2 full working days’ notice, and more if the charges are complex.
- I couldn’t prepare because I was suspended
Employees frequently misinterpret notices of suspension to mean that they are ‘not allowed’ to prepare for their hearing. Do not leave room for doubt on this issue. If you suspend an employee, make it clear that while they may not be allowed on the premises, but they will be assisted to access whatever or whomever they need to prepare. Give the employee an email address and contact number for the specific individual who will find documents, arrange witnesses, etc, for them. Confirm this information in both the notice of suspension and notice of hearing.
- I couldn’t prepare because the employer did not show me their evidence
The employer is not required to hand over a prepared evidence pack prior to hearing. The employee should be in possession of a clear charge sheet that lets them know exactly what facts and implications the employer is trying to prove. The employee should then request the specific documents he or she needs to defend against the charges.
- It’s not fair that I can’t be represented by a lawyer / union official
Employees have the right to be represented by a colleague or trade union representative. This right is specified by the LRA and should be made clear in the notice of hearing. There can be some confusion about the term “trade union representative”. This means a shop steward. A union official is a full-time union employee.
Both parties will be represented by internal representatives. This places them on even-footing. Neither party will be bullied by the other. The chairperson is there to ensure that both parties are heard and order is maintained. Unless the employee can show that they would be prejudiced by a lack of external representation there is no reason to allow it.
- I want a postponement
Employers should make it clear to employees that they should request a postponement as soon as it becomes apparent that they need one. Put this in the notice, the covering mail, or both.
If the initial notice period has been reasonable the employee must offer some justification for their request. This request should be considered with an open mind in the context of the particular case. What is the motivation for the postponement? Is the request genuine, or just an attempt to delay? Even if the request cannot be granted in full, can a lesser reasonable time be accommodated? How much disruption and cost would it cause the employer to delay? All of these considerations should play into either granting the postponement prior to the hearing or help you to explain to the chairperson why the employee’s request should be denied.
- My representative and witnesses aren’t available
The employer cannot obstruct the attendance of an employee representative or witness and should facilitate their attendance. This does not, however, mean that arranging for this is the employer’s responsibility. Employees must be proactive and cannot assume that the employer, representative or witnesses will make any effort on their behalf without being specifically requested to do so. Employees should also take the lead in making sure that they meet with their representative prior to the hearing. An employee’s lack of concern for their own case does not entitle them to a postponement.
- The chairperson is biased because the company pays them
The chairperson is there to be an objective decision-maker. That is what they are being paid for. The chairperson has a greater incentive to make sure that the employer (their client) implements discipline for a fair reason and via a fair process. If they simply rubber-stamp the employer’s decisions, that employer is going to end up fighting a losing battle at the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or Labour Court.
- It’s not fair that my hearing is being held online
Virtual meetings are the norm and there is nothing inherently prejudicial about this medium. If the employee has limited resources, the employer must assist him or her to join the meeting. If the employee cannot explain some actual prejudiced caused to them by meeting virtually, then there is no reason to postpone.
- I resigned, so you can’t discipline me
This is simply not true. The Labour Court has confirmed that employees can be disciplined during their notice periods.
Many of these misunderstandings can be cured through proper communication. The notice of disciplinary hearing should be set out in plain, understandable language. Issue the notice in person if you can. Go through the notice point-by-point and encourage questions from the employee. Focus less on whether the employee wants to sign the notice, and more on whether they understand the purpose of the notice: Time to prepare.