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The investigation, preparation and presentation of the case for the complainant at the disciplinary hearing

 A Two Day Course for


Initiators Investigators

 

 

06 & 07 April 2017: Southern Sun: OR Tambo International Airport

 

 


SA Labour Guide is an accredited training Provider with Services Seta 

 

seta

 

Click here to download registration forms for 06 & 07 April 2017: Southern Sun: OR Tambo International Airport

 
 

Table of Content

 

Module 1 – Introduction        

     

Module 2 – Schedule 8: the Code of Good Practice on dismissal              

  • Introduction
  • Fair reasons for dismissal
  • Automatic unfair dismissals
  • Standard of conduct
  • Progressive discipline
  • Dismissals for misconduct
  • Fair procedure
  • Disciplinary records
  • Dismissals and industrial action
  • Probation
  • Incapacity: poor work performance
  • Incapacity: Ill health or injury
  • Right to fairness and dismissal as defined by the LRA

 

Module 3 – Fair procedure prior to disciplinary action  

 

Module 4 – The role players in the disciplinary process               

Who does what?            

  • The chairperson
  • The initiator
  • The interpreter
  • Witnesses
  • The secretary
  • The accused employee
  • The accused employee’s representative

The appointment of the investigator    

 

Module 5 – The sources of evidence     

  • Introduction
  • Witnesses
  • The accused employee
  • Accomplices
  • Documentary and physical evidence
  • Security guards
  • Site inspections
  • Customers and suppliers

 

Module 6 – Identify and investigate the misconduct

  • First step - the accused person is an employee of the company
  • Second step - the complaint
  • Third step
  • What must the investigator look for?
  • Examples of transgressions
  • Bringing the employer's name into disrepute
  • Willful damage to the employer's property
  • Disobeying safety rules and regulations
  • Fraudulent timekeeping, fraud or forgery
  • Falsifying of documents
  • Assault or indecent assault
  • Abusive language, disorderly behaviour, racism or racist comments
  • Insubordination
  • Conflict of interest/dereliction of duty
  • Dishonesty
  • Sexual harassment
  • Refusal to work overtime without a valid reason - despite the fact that reasonable notice was given
  • Unauthorised or unlawful possession of drugs or alcohol, alcohol or drug abuse or being under the influence
  • Unauthorised possession of company property or theft
  • Use of company vehicle/property without permission
  • Under the influence of, or having consumed, alcoholic liquor or drugs off the premises by presenting himself for work, or on the premises after having arrived at work
  • Unauthorised absenteeism from the workplace/abscondment
  • Abuse of sick leave
  • Collective and derivative misconduct

 

Module 7 – The investigation   

Introduction     

  • Has a rule or standard been broken, or a policy or procedure or the employment contract been breached?
  • Was the rule or standard reasonable, lawful and attainable?
  • Was the employer's expectation of compliance with the breached rule or standard a fair and reasonable expectation?
  • Was the accused employee aware of the rule or standard or could he/she reasonably be expected to have been aware of it?
  • Did the accused employee understand the requirements of the rule or standard?
  • Has the rule or standard has been consistently applied by the employer?63

The investigation continues

 

Module 8 Witness statements 

Introduction     

How to take down statements?               

  • Time and accuracy
  • Contamination and completeness
  • Be concise
  • Objectivity
  • Comprehensibility
  • Honesty
  • Statements made voluntarily
  • Language

Sworn statements or statements taken under oath        

The form of the statement         

  • Preamble
  • Body of the statement
  • The end

 

Module 9 Finalising the investigation and charging the employee          

Features of a Disciplinary Procedure for Misconduct     

  • Application of the procedure
  • Objectives
  • Terminology
  • Charging the employee
  • Deciding on the charges

When to hold a formal disciplinary hearing?     

The informal disciplinary hearing           

Suspension of the employee    

 

Module 10 Preparing for the disciplinary hearing            

  • Final preparation
  • Do’s and don’ts for initiators

 

Module 11 The disciplinary hearing       

  • Starting off with the disciplinary hearing81
  • Interdicting and stopping a disciplinary hearing81
  • The hearing commences
  • Procedural fairness
  • Postponements
  • The opening statement
  • Leading and testing evidence and versions
  • Evidence in chief
  • Cross examination
  • Re-examination94

 

Module 12 Evaluating evidence and making a finding   

  • Evaluating evidence - Getting the facts and proving it
  • Evidentiary burden
  • Sources, types and admissibility of evidence
  • Security guards
  • Site inspections or inspection in loco
  • Customers and suppliers
  • Written statements and affidavits
  • Probative material
  • Admissibility and weight of evidence
  • Relevance of evidence
  • Character evidence
  • Similar fact evidence
  • Opinion evidence
  • Expert evidence
  • Previous consistent statements
  • Hearsay evidence
  • Privileged evidence
  • Illegally obtained evidence
  • Direct evidence and circumstantial evidence
  • The cautionary rule
  • Admissions
  • Confessions
  • Polygraph tests
  • Presenting and evaluating evidence
  • Consultations during evidence

 

Module 13 – Finalising the disciplinary hearing and the appeal

  • The reconvening of the hearing
  • Sanctions available
  • Counselling, training and verbal warnings
  • Written warnings
  • The final written warning
  • Temporary suspension of employment
  • Dismissal for misconduct
  • Requirements for proving the procedural fairness of a dismissal

 

Who should attend?

  • Employment relations managers/ practitioners, general managers, HR Managers, discipline, union representatives, individuals that act as initiators/ prosecutors in disciplinary hearings.

 

Course outcome

  • After completion participants should be able to conduct an investigation, identify and categorise transgressions, implement appropriate procedures and represent the company or an employee at a disciplinary hearing.

 

About the presenter

The course will be presented by advocate Nicolene Erasmus

Tertiary qualifications

  • B Proc
  • LL B
  • LL M Labour Law
  • Certificate Labour Law
  • Advanced Certificate Dispute Resolution
  • University Diploma Communication (UDC)
  • Honns BA (Communication)
  • MA (Intercultural adaptation)
  • Honns BA (Tswana)

 

Price:  

  • R 4990-00 (incl. Vat) per delegate
  • Price include course material, certificates of attendance, & catering/ refreshments  
  • Safe and secure parking

 

For further information contact:

  • Hanlie Rouan (012) 661 3208

 

 

Click here to download registration forms for 06 & 07 April 2017: Southern Sun: OR Tambo International Airport

 

 


         

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

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