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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:

 

 

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

 

 


         

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

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