Employee Rights and Parties’ Obligations during a Disciplinary Hearing

Disciplinary hearings are formal processes used by employers to address alleged misconduct
or poor performance by employees. The purpose of a disciplinary hearing is to determine
whether the employee’s behaviour or performance warrants disciplinary action, and if so,
what the appropriate sanction should be.
Disciplinary hearings in South Africa are governed by, inter alia, the Labour Relations Act (LRA)
and the Code of Good Practice on Dismissal. These laws set out the rights of employees who
are subject to disciplinary action and outline the procedures that parties to a disciplinary
hearing must follow.
Employees who are subject to disciplinary action have certain rights that are protected under
South African law.

These include:

1. The right to notice: Employers must give employees what is considered as reasonable
   notice of the disciplinary hearing and the allegations against them.
2. The right to be heard: Employees have the right to respond to the allegations made
   against them and to present evidence in their defence.
3. The right to representation: Employees may be represented by a trade union
   representative or a colleague at the disciplinary hearing.
4. The right to an interpreter: If an employee is not fluent in the language used at the
   hearing, he/she has the right to an interpreter.
5. The right to appeal: Depending on the employer’s policies, employees may have the right
   to appeal the outcome of the disciplinary hearing.
   A number of parties would be present at a formal disciplinary hearing. It is important to know
   the role that each plays as well as what is expected of them. These parties include the following:

• A chairperson (preferably independent): The chairperson should be unbiased and
  impartial and have no knowledge of the case prior to the hearing. This person will
  facilitate the entire hearing, and it is their role to ensure that it is conducted in an orderly,
  fair, and objective manner.
• The employer/complainant: This party must lead and submit evidence and call witnesses
  to prove the employee’s guilt. The employer must provide the chairperson with the
  company’s disciplinary code and ensure that the matter had been properly investigated
  in order to prove that the employee is guilty on a balance of probabilities.
• The accused employee: In order to give full effect to the audi alteram partem (“listen to
  the other side”, or “let the other side be heard as well”) rule, an employee must be given
  the opportunity to be heard. The entire purpose of a hearing is to allow an employee who is allegedly guilty of misconduct, an opportunity to defend himself/herself against the charges. The accused employee will be afforded the opportunity to lead evidence and call witnesses in defence of the charges. Once the employer/complainant has made their statement and called witnesses, the employee will be afforded an opportunity to cross-examine the employer/complainant and their witnesses. This is to familiarise the chairperson with the employee’s side of the case.
• The employee’s representative (if required): An employee facing a disciplinary hearing
  has the right to be represented or assisted at the hearing either by a fellow employee or
  by a shop steward. While representation by an external person is not a right, this should
  not simply be denied without affording the accused employee the opportunity to state
  the reason for requesting said representation. The representative will be afforded the
  opportunity to make representations on behalf of the accused employee and to crossexamine evidence and statements submitted.
• An interpreter (if required): An employee facing a disciplinary hearing has the right to an
  interpreter who will translate all proceedings in the language as requested by the
  employee. It is important to note that an interpreter will only be fulfilling the role of a
  translator and will not be allowed to testify in the hearing.
  Disciplinary hearings can be a stressful experience for employers and employees. It is
  important to understand rights and obligations, as well as the procedures that apply.
  Affording each party the explicit right to be heard and being fully aware of each party’s role
  in a disciplinary hearing , will support a fair procedure.