Section 186 of the Labour Relations Act (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 the response….”

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.

In the case of Oliver vs Universiteit van Stellenbosch (Contemporary Labour Law Vol. 14 No. 9 April 2005) a forensic investigation report implicated Oliver in certain irregularities at the university. He was given notice of a disciplinary hearing. The employee’s application for certain documentation and for a postponement were not granted. The employee was also not given further clarity on the charges. As a result he applied for a High Court order. The Court ruled that:

• The employee had not been given sufficient time to prepare and the university’s decision not to postpone was wrong
• It was presumptuous of the employer to decide what documents the employee would need. The employer had not argued that the requested documents were irrelevant, confidential or unavailable
• The charges against the employee were vague
• The employer was to provide the documents and the further particulars required by the employee.

In the case of NUMSA obo Masina vs Cobra Watertech (2009 2 BALR 140) the employee requested clarity on the charges given to him in advance of his disciplinary hearing. However, the employer refused to provide this clarity. The arbitrator therefore decided that, although disciplinary hearings are not required to conform to the procedures of criminal trials , accused employees are at least entitled to be informed of the charges against them. Due to the scantiness of the information concerning the charges that had been given to the accused employee the Commissioner ruled that the employee’s dismissal was procedurally unfair and ordered the employer to pay compensation to the employee.

These decisions act as a warning to employers in that:

• The employee’s right to prepare for a disciplinary hearing is sacrosanct.
• Withholding documents needlessly from the accused employee serves no useful purpose. Where the requested documents are confidential and/or irrelevant to the disciplinary charges the employer requires expert labour law advice on how to withhold such documents in a way that does not infringe the law.
• Providing the employee with charges that are general or vague will not assist the employer’s cause, but will instead, be seen to be unfair because this prevents the employee from knowing against what specific charges he/she needs to prepare a defence. Formulating charges clearly, comprehensively, legally and in a manner useful both to the employee and to the employer is very difficult. This should not be done without the assistance of a labour law expert.

Employers are also reminded that, where the employee is allowed external legal representation at the disciplinary hearing, the employer needs to be sure that the official acting as complainant (initiator or prosecutor) and the person chairing the hearing both have the legal expertise necessary to cope with the expertise of the employee’s attorney, advocate or union official.

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za.

Article first published on the SA Labour Guide website