Discipline and Dismissal

 

This is another question that arises time and time again. Very often, it emanates from the fact that trade unions, or the respondent’s legal adviser, will demand to be given copies of any witness statements or other evidence in the possession of the employer, prior to the disciplinary hearing.


Firstly, it must be remembered that the disciplinary hearing is an internal matter - the disciplinary hearing is not a court of law - and therefore any such principles that may be applicable to a Court of Law does not necessarily apply to the disciplinary hearing.


In terms of the disciplinary hearing, the employer can make provision in his disciplinary code and procedure regarding such matters. It must further be remembered that the forum for presenting evidence is at the disciplinary hearing - not prior to it.


The respondent - and the complainant for that matter – must, during the hearing,  listen to the evidence of the other side, must listen to any verbal evidence given by witnesses, and make notes regarding any points in that evidence that he requires to contest or dispute in cross-examination.


In ESKOM / NUMSA obo Galada and Others [2000] 7 BALR 812 (IMSSA) this very question was addressed. It was ruled that employees are not entitled to be furnished, prior to disciplinary hearings, with documentary evidence which the employer intends to introduce.


It is sufficient that employees be given, prior to the hearing, sufficient detail of the charges to enable the employee to prepare a defence, and to be given a reasonable opportunity during the hearing to examine the evidence of the complainant.


Among other things, the trade union contended that the disciplinary proceedings were unfair because none of the dismissed employees had been furnished in advance with documentary evidence which the employer introduced at the hearing.


The employer's disciplinary code made specific provision in this regard - it provided specifically that accused employees should be given an opportunity to examine evidence only during the disciplinary hearing. There was no provision in the Code for employees to be placed in possession of such evidence prior to the hearing.


The award stated further that accused employees do not have an absolute right to access the employer's evidence in advance of disciplinary hearings. In this particular case, the employees had been given a reasonable opportunity to examine the documentary evidence during the disciplinary proceedings - and therefore there was no procedural unfairness in that respect.


It is not a good thing for an employer to introduce written witness statements into evidence, and it is not a good thing for him to allow his witness to merely read from his written statement as evidence. If he does so, then generally the other side becomes entitled to a copy of that written statement - and they can cross-examine the witness on the content of his written statement rather than on his verbal testimony.


That sort of situation can cause problems if the witness has skipped over, or left something out of his evidence, in his verbal submission when it is written into his written statement. Employers should properly prepare their witnesses before the disciplinary hearing, and lead the witness in his evidence in such a way that the witness testifies to everything that is in his written statement, but does so verbally and the written statement is not actually introduced into evidence.


It is possible during a hearing that the accused employee or his representative may ask for an adjournment in order to enable them to study any documentary evidence that has been introduced. Obviously, provided the request is a reasonable one, there is nothing preventing the respective parties from agreeing to a reasonable postponement or adjournment.


For further information,

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 >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Compensation for Occupational Injuries and Diseases Course

22 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

12 September 2019

Southern Sun: Maharani Towers: Durban

Employment Equity Committee Training

23 August 2019

Emperors Palace: Convention Centre

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play