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Chairing Disciplinary Hearings
  
  

 

 

19 & 20 November 2020 (09:00 - 16:00) Interactive Online Course

 

Online Booking form

 

Click here to download registration forms for 19 & 20 November 2020 (09:00 - 16:00) Interactive Online Course

 

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Table of contents

Module 1: What is a dismissal?

1. Definition

2. Unlawful and unfair dismissals

 

Module 2: The Code of Good Practice - Dismissal 

 

Module 3: Dismissal for misconduct 

1. Introduction  

2. Guidelines in cases of dismissal for misconduct: Item 7 of the Code 

2.1. Is there a rule? 

2.2. Was the employee aware of the rule?

2.3. Did the employee contravene the rule? 

2.4. Is the rule or standard a valid or reasonable rule or standard?

2.4.1. Validity  

2.4.2. Reasonableness 

2.5. Was dismissal an appropriate sanction?

2.5.1. Gravity of the contravention

2.5.2. Reasons for not dismissing: has the rule been consistently applied?  

2.5.3. Reasons for not dismissing: factors that may justify a different sanction 

2.5.3.1. Employee’s circumstances  

2.5.3.2. Nature of the job

2.5.3.3. Circumstances of the contravention  

 

Module 4: Fair procedure 

1. Introduction 

1.1. The right to be informed of the charges

1.1.1. Charges must be clear 

1.1.2. No splitting or duplication of charges 

1.2. The right to a proper opportunity to prepare 

1.3. The employee’s right to be heard and to present a defense

1.4. The right to be fairly judged 

1.5. Suspension  

1.6. The disciplinary hearing 

1.7. Conduct of the chairperson and bias 

1.8. Changing the finding of the chairperson on appeal  

1.9. Double jeopardy 

 

Module 5: Electing a chairperson

 

Module 6: Specific types of misconduct

1. Introduction 

1.1. Derivative misconduct

1.2. Misconduct outside the workplace

2. Absence without leave or permission

2.1. Absenteeism 

2.2. Abscondment  

2.3. Desertion

2.4. Imprisoned employees

3. Failure to inform the employer of the reasons for absence 

4. Abusive language and racist remarks

5. Abuse of sick leave

6. Assault

7. Competing with the employer / conflict of interest 

8. Damage to property

9. Negligence 

10. Disclosing confidential information

11. Dishonesty 

12. Alcohol and drugs

13. Falsification

14. Fraud

15. Bringing the employer’s name into disrepute

16. Insolence/insubordination 

17. Refusal to work overtime

18. Sexual harassment

19. Sleeping on duty

20. Theft/unauthorised possession

 

Module 7: Evidence and findings in disciplinary hearings

1. Leading and testing evidence and versions

2. The opening statement

3. Evidence in chief

4. Cross-examination

5. Re-examination

6. Written statements

 

Module 8: Evaluating evidence

 

Module 9: Evaluating evidence and making a finding

1. Evidentiary burden

2. Evidence: sources, types and admissibility

2.1. Site inspections or inspection in loco

2.2. Customers and suppliers

2.3. Written statements and affidavits

2.4. Probative material 

2.4.1. Oral evidence 

2.4.2. Real evidence - photographs electronic evidence and video tapes

2.5. Admissibility and weight of evidence 

2.6. Relevance of evidence

2.7. Character evidence 

2.8. Similar fact evidence

2.9. Opinion evidence

2.10. Expert evidence

2.11. Previous consistent statements

2.12. Hearsay evidence

2.13. Privileged evidence 

2.14. Illegally obtained evidence

2.15. Direct and circumstantial evidence

2.16. Entrapment 

2.17. The cautionary rule

2.18. Admissions 

2.19. Confessions 

2.20. Polygraph tests

 

Module 10: A step-by-step checklist for disciplinary hearing chairpersons

Disciplinary code 

Practical exercise

The disciplinary process 

 

Who should attend?

HR Managers, line managers, managers responsible for personnel discipline, union representatives

 

Course outcome

  • After completion of the workshop participants will have a clear understanding on how to chair and manage a disciplinary hearing and should be able to reach a decision by taking all the circumstances into consideration.

  • Practical exercises and role plays

  • Delegates will receive the opportunity to participate in groups and to practically chair cases in a simulated environment

 

Price:  

  • R 4350-00 (incl. Vat) per delegate

  • Price include course material, certificates of attendance

  • 2 Days Practical Training

 

For further information contact:

  • Peraldo Senekal (012) 661 3208

  • Fax: (012) 661 1411

  • i

 

Online Booking form

 

Click here to download registration forms for 19 & 20 November 2020 (09:00 - 16:00) Interactive Online Course

 

 

 

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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