Disciplinary Enquiries and Drafting of Charges for a Disciplinary Enquiry

PRACTICAL HINTS: DRAFTING CHARGES

  • DETAIL, DETAIL, DETAIL, but within reason
  • Use your code as a guideline
  • There is a fallback of common law – your code can’t cover everything
  • Do not duplicate/split charges
  • It is possible to have more than one charge for a specific incident as long as you don’t charge an employee twice for the same thing
  • There is such a thing as an alternative charge

WHAT IS MEANT BY FAIR REASON?

Whether or not a dismissal is for a fair reason is determined by –

  • the facts and circumstances of the case; and
  • the appropriateness of dismissal as a penalty.

THE GUIDELINE TEST I.T.O. THE CODE:

  • Employers must establish rules
  • Standards of conduct must be available & clear
  • Formal procedures do not have to be invoked every time a rule is broken or standard is not met
  • Dismissals should be reserved for cases of serious misconduct or repeated offences
  • The employer must consider factors in mitigation before imposing dismissal
  • The penalty of dismissal must be applied consistently.


HOW TO DEAL WITH THE SANCTION OF POTENTIAL DISMISSAL

DEEMED TO BE INNOCENT UNTIL PROVEN GUILTY
(SUSPENSION WITH PAY)

  • Dismissal may be appropriate where previous warnings have not had the desired effect;

or

  • Where the gravity of the offence is such that it may warrant dismissal.

Consider suspending the employee on full pay pending outcome of the enquiry.

AN EMPLOYER MAY SUSPEND AN EMPLOYEE PENDING THE OUTCOME OF AN ENQUIRY WHERE THE CONTINUED PRESENCE OF THE EMPLOYEE:

  • constitutes a risk to the employers business;
  • could result in unrest and dissention amongst the employees;
  • interfere with the employers’ ability to properly prepare for the hearing.

NOTIFICATION TO ATTEND ENQUIRY

  • For all possible dismissals
  • Must preferably be read out to employee
  • Employee to sign for acceptance
  • Refuses to sign - explain proof of receipt and not admission of guilt
  • If employee still refuses to sign, ask credible witness to sign.
  • Employer retain copy, original must be handed to employee
  • Right to representation
  • Right to proper prior notice
  • Right to call witnesses
  • Right to cross-examination
  • Right to produce evidence in defence
  • The obligation to be present at the enquiry.

EMPLOYEE’S RIGHTS

  • Right to representation
  • Right to proper prior notice
  • Right to call witnesses
  • Right to cross-examination
  • Right to produce evidence in defence
  • The obligation to be present at the enquiry.


THE PARTIES’ ROLES

  • The Company Rep / Initiator / Prosecutor

(Conduct investigation, get evidence & statements, formulate charges, issue notice of enquiry, present opening statement)

  • The Chairperson

(have equal/higher status to complainant, must not have knowledge of the charges, impartial, facilitate orderly and procedurally correct enquiry, only to ask clarifying questions)

  • The Employee / Employee Rep

(to present a defence, state its case, call & cross-examine witnesses, allowed to caucus,)

  • The HR / IR Division

(facilitative & advisory role, to ensure procedural guidelines be adhered to by chairperson, to advise chairperson on matters pertaining to guilt and sanction, consistency and the like)


INITIATING QUESTIONS / EVIDENCE IN CHIEF

  • Evidence from a witness is elicited by questions & answers
  • Questions provided by Company / employee rep & the answers by the witness.
  • As introduction, evidence is presented broadly by providing undisputed facts which are common cause i.e. to confirm date & time of a particular incident

DO

  • Let a witness settle down by answering formal questions before answering more important questions;
  • Frame questions carefully & clearly;
  • Ask questions off a pre- prepared statement;
  • Extract all the evidence that is needed from a witness during examination

DON’T

X Ask leading questions
X Ask questions which extract hearsay answers
X Ask irrelevant questions
X Ask witnesses for opinion unless the witness is an expert

CROSS EXAMINATION

  • Questioning a witness after the rep has completed his questioning
  • To elicit further relevant facts which were not forthcoming during evidence in chief
  • To test the credibility of a witness
  • Cross-examiner may ask leading questions
  • May be used to discredit the evidence given by a witness

DO

  • Obtain facts favourable to the case
  • Show that adverse evidence is vague, contradictory, improbable, mistaken, biased or untruthful
  • Attract credibility
  • Try to highlight contradictions
  • Put as much of one’s own case to that witness so that one’s case may be known and commented upon
  • Elicit facts which may be used to cross-examine other witnesses
  • Cross-examine only for gain.

DON’T


X Never ask a question to which you do not know the answer
X Try to improve on a favourable answer
X Make speeches
X Answer a question put to one by a witness unless it is for clarity
X Be rude and unnecessarily aggressive


PRACTICAL HINTS: CROSS EXAMINATION

 

  • Use questions that prevent the witness from evading crucial issues
  • Never argue with a witness
  • Caution the evasive witness
  • Only Cross-examine if you stand to gain
  • Follow a pattern but do not be predictable
  • Do not allow a witness to be misled
  • Put your understanding of the facts to the witness once the questioning is over. Ask him/her to confirm
  • Listen actively
  • Witnesses should normally not be allowed to ask questions

RE EXAMINATION


A witness who has been cross-examined may be re-examined by the party who originally called him/her as a witness. The primary aim of re-examination is to:

  • place answers in perspective
  • clarify matters
  • give the witness an opportunity to elaborate on answers given under cross- examination

The questions asked during re-examination are limited to matters raised during cross-examination only.

DON’T extract new evidence or raise new issues DON’T cross-examine your own witnesses.

Written and presented by Grant Wilkinson of Global Business Solutions

grant@globalbusiness.co.za
082 570 8595
www.globalbusiness.co.za

Located in: All Policies