Overview

The CCMA is full of cases where employees complain of procedural or substantive unfairness. A disciplinary hearing is an informal process but sometimes it can become too informal with everyone talking, and the entire structure is destroyed; it becomes a free-for-all. When procedural irregularities arise these divert the hearing away from the basis of the hearing which is the actual misconduct, which led to the hearing being called in the first place. To run a fair and proper hearing, you will have to know how to construct the charges and what you need to do as an employee or employer to prepare for the hearing.

Time frames for the investigation and the hearing need to be kept to. The rights of both sides need to be considered. You cannot just summon an employee into a hearing and expect the hearing to be fair. Disciplinary processes need to be put in place and observed. 

In this webinar, we will deal with the different types of misconduct and the levels of proof needed to prove them. We will explain how you ensure that the process is held in a formal manner without too much input, pressure and time wastage. There is a need to stick to the facts and relevance of the actual misconduct or alleged misconduct. We advise how an employer should hold a disciplinary hearing and what pitfalls to look out for; who are the role players and what are their roles. It is essential to know how to prep your witnesses and ensure that they give the evidence needed to ensure fairness prevails. 

We consider the rules of evidence and what evidence is admissible - we look at video evidence, hearsay evidence, polygraphs and other forms of evidence. We discuss the latest case law and highlight the most common pitfalls in disciplinary hearings. We then set out the basics for procedural and substantive fairness and discuss and explain the preparation steps so that you can hold an informal, fair, solid hearing that can stand up to CCMA scrutiny and allow the role-players to deal with the critical issues. We discuss and advise you on the details as to who should be the chair what expertise they should have. We will advise you on what information you as an HR practitioner or lawyer for the company need to provide to the chairperson and at which stage you are to provide same. 

What are the possible outcomes, and do you as the employer have to stick to your disciplinary code? We consider whether you can still dismiss if the chair finds that a final warning is the preferred outcome. Can you proceed with the hearing when the employee is on sick leave? Appeal hearings are often offered - how do they work and can an employee only appeal or can an employer also appeal. Is the option of an appeal necessary? Disciplinary codes are said to be guidelines, but when do you have to use them, and when can you deviate from them. As an employee, it is essential to understand why the employer is trying to discipline you and even why he is trying to dismiss you. As an employer, it is similarly crucial to know what the employee is thinking and how to prevent any procedural irregularities. Yes, procedural irregularities are bad for both employers and employees alike. We discuss the issue of suspension pending a disciplinary process, whether it is necessary, and for how long should an employee be suspended. Surely you can avoid paying an employee whilst he is on suspension, and what to do if a suspended employee is consistently reporting as sick or catches covid? 

We discuss the need to investigate the misconduct and when an outside company should undertake the investigation. Sometimes a case seems easy, but then, it becomes more difficult when you gather up the evidence and draft the charges. Where can you obtain evidence from, and how do you ensure it is not defective or becomes defective. Polygraph testing has its own issues and pitfalls. Human resource managers and even attorneys need to use the option of polygraph testing correctly so that their efficacy is maintained. A renowned expert polygrapher will be called upon to give us his take on polygraph tests.

Learning Objectives

• Understanding procedural and substantive fairness.
• Learning how to conduct a reasonable and fair disciplinary hearing.
• Be aware of the common pitfalls that make a hearing open to challenge at the CCMA.
• Proper phrasing of charges and avoidance of confusion
• Adequate preparation before the hearing. Preparation of documentation and witnesses.
• How to frame the charges and what to do if they need to be changed?
• Which witnesses can you call, and what testimony is allowed?
• What amounts to evidence? How do you prepare this? We will provide a complete discussion of recent and past cases.
• We will provide a disciplinary hearing checklist.
• How to record the outcomes and compile an accurate report?
• How to phrase the finding and ensure it is a fair outcome in light of the evidence presented?
• Who can chair the hearing and issues with chairpersons?
• An awareness of the latest case law as regards disciplinary hearings.
• What is an appeal hearing, and what is considered on appeal? Is an appeal hearing necessary?
• What does an investigation of a misconduct involve?
• When to suspend an employee and when not to.
• Use polygraph tests without the fear of corrupting the entire process.
• We will analyse cases that deal with disciplinary hearing pitfalls and errors.
• We will give you the knowledge of the law on disciplinary hearings.

Who should attend

• Legal Practitioners;
• HR Representatives;
• Industrial Relations officers
• Legal officers of companies
• Union officials
• Paralegals
• Law students and candidate attorneys
• Employees
• Anyone interested in Employment and Labour Law 

Price

R 450.00 per person (Online admission - Individual)

Steps to register for the event

• If you already have a profile, login and register for the webinar.
• If you don’t have a profile, create a free profile then login and register for the webinar. Click here to create a free profile (There is no charge to create a profile and gain access to our free content).

Additional material

By attending this webinar, we will provide you with the following:

• A summarised slide presentation.
• A list of options as an Employer and Employee.
• You can ask questions during the webinar and at the end of the webinar we will open up the floor so that you can get immediate answers to any outstanding queries.