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How to be an expert litigator at the CCMA and Labour court

This webinar on demand is part of a series of webinars. Click here to read more

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Overview

The CCMA is full of cases where employees complain of procedural or substantive unfairness in the disciplinary hearing process. The charges can be poorly framed, and the process can fall apart and become a free-for-all. These issues often cloud the actual misconduct, which is why the employee was charged 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.

Disciplinary hearings are informal, but some structure is needed. Time frames and rights of both sides need to be considered. You cannot just call an employee into a hearing and expect the hearing to be fair. In the webinar, we will explain how you can ensure that the process is held formally without too much input, pressure, and time wastage. We will aid you in eliminating irrelevant issues so that the entire process is streamlined and the misconduct takes centre stage. We will explain how a disciplinary hearing should be conducted, who the role players are, and their roles.

We consider the laws of evidence and when evidence is inadmissible - 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 that arise in disciplinary hearings. We then set out the basics for procedural and substantive fairness and discuss and explain the preparation steps to hold an informal, fair, solid hearing that can stand up to CCMA scrutiny and allow the role-players to deal with the crucial issues.

Last but not least, we delve into the arena of sanction and outcomes. What are the possible outcomes, and do you as the employer have to stick to your disciplinary code? We consider whether you, as the employer, can go against the decision of the chair. Can you proceed with the hearing when the employee is on sick leave? What is the purpose of an appeal hearing, do they work and are they necessary? Disciplinary codes are recommended; they remain a valuable source of information to employees, employers, and the chair. We will help you to know how to prepare, how to know what the other side is planning and what is acceptable conduct. We discuss the issue of suspension pending a disciplinary process, whether it is necessary, and how long an employee can remain suspended. We investigate whether an employer can refuse to pay a suspended employee and what happens to the rights of the employee whilst they are on suspension.

We will discuss issues such as the need to investigate the misconduct before charging the employee, whether or not you need to use an external chair or even an outside company. Sometimes a case seems easy, but 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 has its issues and pitfalls; human resource managers and even attorneys need to use them correctly so that their efficacy is maintained. A renowned expert polygrapher will be called upon to give us his take on polygraph tests.

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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? A complete discussion of recent and past cases.
• A procedural checklist will be provided.
• How to record the outcomes and compile a formal 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 tainting the entire disciplinary process.
• A thorough knowledge of the case law on disciplinary hearings.
• A thorough knowledge of the law as it pertains to disciplinary hearings.

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Who should attend?

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

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Additional material

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

• A summarised slide presentation.
• We will provide you with a disciplinary hearing checklist and action plan.
• Access the latest case law and summaries of the cases and the findings of the court.
• You can ask questions during the webinar, and you will also have access to the presenters after the webinar.