Initiating, Chairing of Displinary hearings and Grievance Procedure

Initiating of a disciplinary hearing steps

Institute a company disciplinary code

Make sure your staff have read, signed , and understand the code

Apply and enforce this code consistently and fairly, with no exceptions, create a precedent in the workplace

Investigation interview

The investigation report allows the investigator to analyse all available information and evidence, thus enabling him/her to make an objective decision as to whether or not a disciplinary enquiry should be held

Includes •-Oral evidence •-Real evidence •-Documentary evidence •-Interviews

Interviews General principles pertaining to

interviewing

Introduce yourself

Explain why need to interview the person

Explain what will happen after the interview

Establish trust with the witness and persuade him/her to reveal the truth

Never construct a version or put words in a witness’s mouth

Be detailed

Interview Report

The information obtained during the interview will be recorded on the interview report.

Although the interview Report contains standard questions ,the interviewer must prepare additional questions to be asked during the interview

When an interviewee requests a union representative during interviews, this should be granted in the form of one shop steward that would act as an observer

Suspension

An employee may be suspended on full pay pending investigation or outcome of a disciplinary enquiry.

Should the suspended employee fail to report back to work on the specified date without a good reason, he/she will not get paid for any time calculated from the specified due date and such an employee may be committing a further disciplinary offence

Notification of Rights

You must issue a notification to attend an enquiry in writing to ensure the employee is aware of the enquiry.

A second notice must be issued if the employee fails to arrive at the disciplinary enquiry as instructed

If the employee fails to comply with the second notice, an enquiry may be held in absentia, however the chairperson must first ensure that the employee did in fact receive the second notice

Should the hearing be held in absentia, the employer must notify the employee of the out come, sanction and the right to appeal if applicable

Presenting your case

Leading evidence

How to present opening and closing statements/arguments

Preparing the witnesses

Preparing questions for the witness

Cross examination

Aggravation circumstances

Evidence in chief and Questioning

Call witnesses sequentially Settle witnesses Allow witnesses to lead evidence in own words and language • Only interrupt the witness in order : • -guide to salient • -highlight certain aspects • -prevent from straying from the point Stick to your plan as explained to witnesses during preparation time Never ask a question to which you don’t know the answer Never argue with a witness or create uncertainty by dis agreeing

with certain aspects of evidence Use an appropriate approach i.e. Friendly Vs. Aggressive

questioning

Closing Arguments

The purpose of this section is to provide both the initiator and the accused employee or his /her representative an opportunity to make final submissions

Emphasize the accused employee's weak points or weaknesses and discredit the witnesses evidence

Emphasize your strong points and highlight salient areas of your evidence and that of witness

How to chair a hearing phase 1-introduction Phase

During the first phase, the chairman

-introduces the parties

-gives an explanation of the reason why the parties are present

-explains the proceedings that will follow

-ensures rights have been respected

Process that the chairman follows

Introduce everybody and confirm roles and regulations Confirm representative and interpreter Explanation of individuals rights Confirm the allegations Listen to the opening statements Allow the initiator to lead the case Manage the calling and cross-examination of witnesses Manage adjournments Manage closing arguments Issue chairperson's summary Manage adjournment to make a finding Examine the employee’s record and consider mitigating circumstances Manage adjournment to decide on the sanction to be handed down

Participants at a disciplinary hearing

Chairperson

Initiator

Employee concerned/Alleged offender

Representative (fellow employee at the unit)

Human Resources representative

Other persons as required by the chairperson

Phase 2-Pleading Phase

The accused employee then makes a plea with respect to each charge

Phase 3-proving guilty/innocence phase

Employer’s representative and employee’s representative may give opening statements here

Proving the presence of guilty (employers case

Initiator puts forward the employer’s case and attempts to prove the presence of guilty

In order to prove guilty, the initiator must prove that there was CONDUCT and that a MENTAL ELEMENT was present

The MENTAL ELEMENT must be in the form of intent or negligence

Intent

Intent means that the conduct occurred on purpose

Negligence

Negligence means that the conduct was careless( reasonable person would not have acted in such a manner)

how to prove the presence of Conduct and a mental element

By leading witnesses ( oral evidence) Oral Evidence is characterised by 4 stages 1.Examination- in chief (parties question own

witness) 2.Cross –examination( a party cross –

examines the other parties witness) 3.Re-examination-( own party asks questions

of own witness after they have been cross-questioned

4.The chairman then clarifies anything he /she is unsure of

2 factors that play an important role in oral evidence

Credibility (i.e. consistency of statements)

Reliability (i.e. Evaluation of the opportunity the witness had to see the person/event

1.By presenting other evidence

-Real evidence in the form of objects that can be produced or that are available for inspection by any interested party

2.Documentary evidence in the form of the content of a document

Proving the Absence of Guilty(Accused Employees case)

The employee’s representative then puts forward the accused employee’s case and attempts to prove the absence of guilty

The employee’s rep presents witnesses and provides evidence to support the contention that the accused employee is not guilty

The initiator and the employee’s rep may give closing statements at this stage of the hearing.

After closing statements have been given, the chairman adjourns the proceedings

Phase 4-Dertemination of Guilty Phase

Chairman must now decide on balance of probabilities whether or not the accused employee is guilty.

Chairman to communicate the decision and the reasons for the decision

If a guilty decision is reached , then ask the accused to advance to mitigating circumstance

Balance of probabilities factors that indicate the presence and

absent of guilty

Where there are more factors that indicate

the presence of guilty than the absence of guilty the accused employee must be found GUILTY

Where there are more factors that indicate the absence of guilty than the presence of guilty , the accused employee must be found NOT GUILTY

Where there are an equal number of factors indicating the presence and absence of guilty, the employee will not be found guilty

Phase 5-Sanction Phase

If the accused employee is not Guilty, the hearing ends

The paperwork used in the case should then be filed for record purposes

If the accused employee is guilty

Chairman must decide on an appropriate sanction

Mitigating Circumstances

Aggravating Circumstances

Chairman must weigh up 3 factors against one another

-seriousness of the offence

-interest of the accused employee

-interest of the employer

Appeal procedure It is the right of an employee to appeal against

disciplinary action taken • Grounds for appeal are as follows

• Procedural disciplinary hearing • Unfair penalty I.e., too severe • Evidence not properly considered • New evidence can be introduced • Mitigating circumstances

Case Study

• Care fully read the below and discuss all concepts learnt so far as well as entire procedure concentrating on the following :

The investigation The preparation The Charge ( s) Presenting the case Opening/closing statements The findings Mitigating/aggravating circumstances Sanction The right to Appeal

Case study

Themba works at a hotel . on the 31st of May 2016 after completing his shift, Themba is stopped by a security guard at the staff entrance who suspects something. The security guard searches the employee and finds a full chicken in his bag.

What is a Dismissal

when the court, commission, or arbitrator is assessing whether there has been an unfair dismissal, the first stage of the enquiry is whether or not the person who has allegedly been dismissed is in fact an employee. If the person is an employee, the next step is to ask whether the action ,which the employee is alleging was a dismissal, is in fact a dismissal, in terms of the definitions .

If the court or arbitrator decides that there was a dismissal, the next question to be asked is whether that dismissal was fair under the circumstances

Fairness of dismissal

• Substantive Fairness • A dismissal cannot be without substance .A dismissal must be justified

,substantiated or explained by the employer

• Procedural Fairness • The employer cannot dismiss an employee without first granting the

employee the opportunity to defend himself/herself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity

• The onus of proof ( S188 and 192) • This lies with the employer . If the existence of the dismissal has been

established ,which must be shown by the employee ,then the employer bears the onus ,or has the duty to show that the dismissal was in fact fair

Dismissals for misconduct

• The LRA contains specific provisions for a fair dismissal for misconduct such as:

• Did the employee contravene a rule or standard? • The existence of a rule or standard regulating conduct in or of

relevance to the workplace • The contravention of the rule or standard

• If the rule or standard was contravened ,was • The rule valid or reasonable • The employee aware or could reasonably be expected to have been

aware of the rule or standard • The rule or standard consistently applied by the employer and

dismissal an appropriate sanction for the contravention of the rule

Dismissals for misconduct

• Gravity of the misconduct

• Circumstances of the infringement

• Nature of the job

• Employee’s circumstances

• Penalty applied consistently

Procedural Fairness for misconduct dismissal

• Investigation

• Prior notice of charge and investigation

• Reasonable time to prepare response

• Employee entitled to state a case in response

• Employee entitled to assistance

• Written notification by employer of decision

• Reason for a dismissal as penalty

Grievance Procedure

A grievance is a dissatisfaction or a feeling of injustice/unfair treatment that may have, real or imagined, relating to the work environment, which merits the formal attention of management but excludes collective wage issues, dissatisfaction about formal disciplinary action taken, and decisions resulting from appeal hearings

General principles of a Grievance

A grievance should be resolved as near to its source at the lowest possible level and as speedily as possible

An employee who has a grievance should have the right to discuss the grievance at successfully high levels of management

When raising a grievance, an employee has the right to be represented by an employee of his choice, who is employed by the unit concerned.

An employee has the right to call and cross-question witnesses as well as to call for a fellow employee to interpret if reasonably required.

No employee shall be victimised for having raised his grievances through the grievance procedure

Participants of the Grievance Hearing

Chairperson.

Aggrieved employee.

Representative (if the employee wishes to be represented by an employee of his choice who is employed by the company at his unit).

(If the grievance is a collective grievance, a reasonable number of additional representatives may be present).

Any other person as may be required by the Chairperson.

NB: The Chairperson shall ensure that the proceedings at the meeting are recorded in writing –

Stages of the Grievance Procedure

Stage 1

An employee who believes he or she has a grievance must first report such a grievance to his Head of Department.

The Head of Department must endeavour to resolve the grievance and communicate the outcome to the employee as soon as possible. Once a decision has been given by the Head of Department and the employee feels that the matter must be pursued further, then Stage 2 becomes effective.

In the event of an employee having a complaint about his immediate supervisor, he must approach the next reporting level of his immediate Supervisor directly for the purpose of resolving the grievance

Stage 2

If the employee elects to proceed with the grievance, he shall, with the assistance of his representative, if he so wishes, lodge the grievance with the Human Resources Representative or the next level of line management. A Chairperson of the same or higher status as the Chairperson of the original grievance hearing will then be appointed and a further grievance hearing convened.

Once a decision has been given by the Chairperson and the employee feels that the matter must be pursued further, then Stage 3 becomes effective.

Stage 3 Where an employee lodges a further grievance, such

request must be submitted to the office of the General Manager and a copy provided to the responsible Human Resources Manager at which time a Chairperson shall be appointed and a final grievance hearing convened.

In requesting a further grievance hearing, the employee concerned or his representative will be required to furnish detailed grounds and reasons upon which he is requesting a further grievance hearing.

At the completion of this stage, the Grievance Procedure will be considered to be exhausted