Four elements a legally compliant disciplinary hearing must have so the CCMA doesn’t overrule your dismissal

Simangele Mzizi, Fsp Business, 23 Jan. 2015

Tags: disciplinary hearing, legally compliant disciplinary hearing, elements of a legally compliant disciplinary hearing

There are four key elements of an effective and legally compliant disciplinary hearing. It’s important for you to know what they are so you can follow them when you hold a hearing.

If you don’t, and you unfairly dismiss your employee, he can take you to the CCMA and win.
And the dismissal will be unfair even if you had a good reason to fire your employee.

Don’t take that risk.

Read on to discover the four elements of a legally compliant disciplinary hearing.

Here are the four elements of a legally compliant disciplinary hearing

1. Your investigation must be thorough
The Labour Law for Managers Loose Leaf Service says you need to investigate thoroughly. This will tell you if:
  • The allegations are valid;
  • You have enough evidence to prove the charges; and
  • The charges are serious enough for you to hold a disciplinary hearing.
Our labour laws make it clear that a formal disciplinary hearing is only necessary when dismissal could be an outcome. So don’t skimp on this step.

******* Hot off the press *******
Don’t let the CCMA rule a disciplinary hearing “unfair” under your watch

When it comes to chairing disciplinary hearings, you can’t afford to make any errors.

If you make one mistake the hearing will be ruled as unfair.

Discover the five steps you need to take to hold a legally compliant disciplinary hearing today

2. Select an unbiased Chairperson who has the right skills
In many cases, the CCMA overturns dismissal decisions employers make, not because dismissal isn’t fitting. But because the Chairperson of the hearing didn’t have the necessary skills to chair the hearing, warns labour expert lvan lsraelstam.
So make sure your Chairperson has the right skills. And check out The Chairman’s Guide to Disciplinary Hearings: How to Chair 100% Legally Compliant Hearings so your Chairperson can chair a legally compliant hearing.
3. Give your employee a chance to prepare and defend his case
Our labour laws always talk about “giving an employee a fair hearing”.
This means you must give him a chance to state his case. This process starts with:
  • Describing allegations for the hearing correctly;
  • Giving your employee notice of the disciplinary hearing in writing; and
  • Telling him about his right to have someone representing him and his right to call witnesses during the hearing.
You can get a sample notification of disciplinary hearing here.
4. Make sure the penalty fits the crime
If you impose a harsh penalty like dismissal for a minor offence, the CCMA will overturn your decision.
To avoid this, the Chairperson must take into account these factors when he decides on the penalty:
  • How serious the offence is;
  • Previous offences;
  • Past warnings; and
  • An employee’s service records.

A disciplinary hearing must be substantively and procedurally fair

The process you follow to conduct the disciplinary hearing must be fair (procedural fairness). And the decision to dismiss or impose another penalty after the hearing must be fair (substantive fairness).
If you stick to these four elements, your disciplinary hearing will be legally compliant and pass the substantive and procedural fairness test.
PS: Overall, there are six key elements of an effective and legally compliant disciplinary hearing. You’ll find the other two in the Labour Law for Managers Loose Leaf Service.




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