A workshop is currently being advertised for Initiators & Investigators to enable them to investigate, prepare for and present cases for ‘complainants’ at formal disciplinary hearings. It costs just under R5,000. But what is the purpose of such training or workshop? Unless employers have foolishly bound themselves to conduct formal hearings, the money will not be well spent. Employers are not legally obliged to conduct formal internal ‘hearings’. Labour law only requires employers to allow employees the right to be heard. This need not be done formally. In Afrikaans ‘aanhoor’ not ‘verhoor’. Employers are only required to investigate employee conduct or inability to perform (capability) and, as part of that process, to allow employees to be heard. Usually employers gather facts and then allow employees to respond to them. There is no legal requirement to lead any evidence and so the process can be conducted informally by a senior manager, even by telephone or via Skype.
- SABC: Disciplinary hearing or right to be heard
- Right to be heard: Same as formal disciplinary hearing
- Avoid criminal justice model: Only right to be heard
- Discard ‘criminal justice’ model – Anton Steenkamp J
Formal hearing at CCMA
There are many disadvantages to conducting internal formal hearings. Outsiders (Initiators & Investigators) may be required and the proceedings will probably be recorded and then a complete record or transcript prepared. All at considerable cost. After dismissal employees have the statutory right to refer any alleged unfair dismissal to conciliation, and then to arbitration, or possibly even court adjudication. Such arbitration or adjudication is where the formal ‘hearing’ takes place. Employers must make the transcript of the internal procedures available to the arbiter or judge and the employee. That will be of enormous benefit to the former employee. Witnesses for the employer now have to give evidence under oath, perhaps many months after having already done so. Every word will be checked against the transcript to see if the story is exactly the same as before. So the cross examination is directed at the reliability of the witnesses and not the merits.
Valid and fair reason
Case law also requires employers to stick to the reasons provided initially for dismissals. In other words new evidence cannot be introduced at the formal hearing. Employers are bound by the earlier reasons and evidence. What also appears to have escaped the attention of many practitioners is the absence of any requirement to prove fault on the part of an employee. Legally there only has to be a valid and fair reason related to the employee’s conduct or capability. A valid reason to dismiss will only be fair if the employee’s conduct has destroyed or seriously damaged the relationship of trust. A valid reason related to capability such as poor performance will only be fair if it has destroyed or seriously damaged the employer’s confidence and inability to rely on that employee.
Legally all dismissed employees have a right to reasonable notice, or payment instead thereof, unless the employer proves that the valid and fair reason for dismissal was also a material breach of the employment contract. So gross misconduct, or conduct that is criminal in nature, would usually justify a summary dismissal (without notice), but only after following a fair procedure.
Importance of language
It is also very important for employers to avoid adopting any form of procedure that smacks of a criminal-type trial. This not only impugns the dignity of employees but will also cause considerable unnecessary resentment and antagonism. As a few labour court judges, such as Anton Steenkamp and Andre van Niekerk, have repeatedly stressed, employers do not have the right to adopt procedures that mimic criminal trials. Accusations of criminal conduct should be reported to the police for further investigation and prosecution if necessary. So language becomes very important. The notion of preparing a ‘charge sheet’ is to be deprecated in the strongest possible terms. It is even worse to expect employees to plead ‘guilty’ or ‘not guilty’ to the ‘charges’ and then ‘convict’ them and ‘sanction’ them.
Waste of money
Advertising material for the workshop suggests [Module 9 – Finalising the investigation and charging the employee] that delegates will be trained to do precisely what the law does not advocate or require, and to ‘charge’ delegates money as well. Seems like a complete waste of time and money!