How To Defend Yourself In A Disciplinary Hearing In South Africa

By | October 28, 2021

Just found yourself in the “hot seat” at work? Been handed a notice to attend a disciplinary hearing? Not sure what to expect, how to prepare or even how to defend yourself? Many employees find themselves in this exact predicament and unless you’re part of a workplace trade union, you’re going to be going about it all on your own. So where does one start?

A disciplinary hearing can be a make-or-break situation for any employee and is not something to be taken lightly. In a volatile economy such as ours, it can mean the difference between continued employment and job loss, which is why you must prepare for the hearing like a professional so you can present your case in the strongest way possible, especially if you’re innocent. While you might be feeling terrified and vulnerable right about now, we’re going to help you become your very own labour lawyer, even if it’s only for just an hour.

Know Your Rights and Ensure Procedural Fairness

First and foremost, know your rights and make sure procedural fairness has been adhered to. Section 1 of the Labour Relations Act (LRA) and section 27 of the Constitution both refer to the right of every person to fair labour practices. In addition, section 185 of the LRA gives every employee the right not to be unfairly dismissed or to be subjected to unfair labour practices. Schedule 8 of the LRA provides that the employee should be entitled to a reasonable time to prepare their response.

Constituting the core rights of an employee when suspected of misconduct and to be fair in terms of the above legislation, you should have at least 24 hours (Schedule 8 of LRA) and must always be reasonable considering the charges themselves. Additionally, the notice to attend should clearly phrase the exact allegation against you as well as notifying you of your entitlement to the assistance of a representative or a fellow employee. Once procedural fairness is complied with, you can start preparations.

Prepare Your Case in 7 Steps

While this is certainly not going to be a high court trial, if you’re innocent and want to defend yourself in the best way possible, preparation is key and, in your case, it’s the difference between a job and no money in the bank. Use these 7 straightforward steps to prepare for your disciplinary hearing:

  1. Assess the allegations against you to determine whether they have been brought in good faith or whether your employer has taken disciplinary action for personal reasons;
  2. Investigate the circumstances of the alleged incident(s);
  3. Evaluate the evidence brought forward by your employer to establish whether it constitutes proof or not;
  4. Decide on representation and which witnesses and other evidence you’d like to use to defend yourself;
  5. Prepare questions for both the employer’s witnesses and your witnesses;
  6. Put forward clear-cut evidence that acquits you from the allegations; and
  7. Prepare your closing statement.

Preparation is key when it comes to a disciplinary hearing, and to make sure you’re legally armed and that your case is watertight, make sure you follow these seven steps to prepare for your hearing. However, should you require expert assistance, turn your attention to Allardyce & Partners.

Employees Rights During Disciplinary Hearings

It is an accepted principle that an accused employee needs sufficient opportunity to prepare in order for the disciplinary hearing to be fair in terms of the above legislation. The employee?s right to sufficient opportunity to prepare has three facets:

  • The right to sufficient time to prepare a defence: The rule of thumb is that preparation time should be at least one full working day. However, depending on the number and complexity of charges and on obstacles that may exist, this preparation period may need to be extended within reason.
  • The right to fully understand the charges: Charges such as “dishonesty? or “fraud? are far too vague. Sufficient details are to be given to the employee to make preparation realistically possible.
  • The right to documentation: The employer should provide the accused with the documents it intends to use in the hearing as well as other relevant documents requested by the employee.