By Ivan Israelstam

While arbitrators have repeatedly faulted employers for procedural unfairness at disciplinary hearings certain employers still maintain that there is no need for a formal hearing. Part of the reason for this misconception is the wording of Schedule 8 of the Labour Relations Act which states that the hearing need not be a formal one. However, the same item requires that the employee be allowed the opportunity to state a case in response to the allegations. The courts have frequently interpreted the latter requirement to mean that the accused employee must be given the right to an unbiased chairperson, to testify, to bring documents, call witnesses and cross examine evidence brought against him/her.

Thus, in order to be able to comply with this the employer needs to set up a formal hearing, the record of which becomes part of the evidence at the CCMA. Because it is at the CCMA where the employer will be required to prove that it complied with legal procedure when dismissing the employee.

Furthermore, where an employee is suspected of poor performance it is not enough to have an informal discussion with the employee about the problem and then to fire him/her the next week. The LRA sets down specific steps to be followed before a dismissal for poor performance can even be considered.

Again it is not practical to comply properly with such stringent requirements in an informal manner because informal processes are difficult to control and to prove.

Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.

To attend our seminars on CHANGES AND DANGERS IN LABOUR LAW on 12 March 2010 (JHB) and 14 May 2010 (Cape Town) please contact Ronni at ronni@labourlawadvice.co.za or on 0845217492 or (011) 782-3066.