Many Chairpersons will agree with me that the most frustrating part of a disciplinary hearing is the lack of preparation by the representative of the accused employee. In many cases it may said that this is a way to frustrate the disciplinary process but I have found that in most of the cases it is merely as a result of a lack of training.

So who must train the Shop Steward; the union or the employer? The answer to this question can be found in section 14 (5) (b):

“Subject to reasonable conditions, a trade union representative is entitled to take reasonable time off with pay during working hours

a.to perform the functions of a trade union representative, and
b.to be trained in any subject relevant to the performance of the functions of a trade union representative.”

It is therefore clear that it is the duty of the union to ensure that its representatives are adequately trained in order to effectively assist other members in disciplinary hearings. I cannot comment on the quality of training that is currently provided to trade union representatives but I can confirm that it is very seldom that you will find an adequately trained trade union representative that can effectively participate in disciplinary inquiries.

This was recently confirmed in a disciplinary inquiry for one of my clients when the trade union representative uncompromisingly objected to the company calling witnesses. The representative argued that the initiator’s witnesses were waiting outside the hearing room and as such they have in advance been told as to what the hearing was about. According to this representative the witnesses should not have known that they were going to testify at a disciplinary inquiry and they should've been called randomly, without notice and without any preparation by the initiator.

Situations such as the above are not only frustrating but also time consuming and counterproductive. As a result of this incident I compiled some guidelines for shop stewards in terms of disciplinary hearings.

17.1 Easy Aid for accused employees and their representatives to disciplinary hearings

Phase 1 - Employee receives notification of disciplinary hearing:

• Obtain a copy of the company’s disciplinary code and familiarize yourself with the procedures outlined in this document.
• You need to ensure the accused employee did get at least 48 hours notice of the hearing or any time in excess of 48 hours as indicated in the company’s disciplinary code / procedures.
• Explain the contents of the document to the accused employee and confirm that the accused employee understands the seriousness of the misconduct he or she has been charged with.
• Explain to the accused employee that he or she must be present during the disciplinary inquiry.
• Explain to the accused employee that he or she has the following rights in terms of schedule 8 of the Labour Relations Act; The code of good practice on dismissals:

The right to be assisted by a fellow employee or a trade union representative.
The right to call witnesses.
The right to present evidence.
The right to cross-examine witnesses called by the initiator.

• Request the services of an interpreter in advance if such services will be required during the disciplinary inquiry.
• Make arrangements with the initiator and or the human resources department to have the witnesses released from duty to testify during the inquiry.

Phase 2 - Prepare for the hearing:

• You need to ask the accused employee what he / she believes are the reasons for the company bringing the charges against him / her.
• Ask open ended questions such as when, who, what and why.
• If the accused is indeed guilty; advise him / her that it may count in his / her favour if he / she shows genuine remorse by pleading guilty and ask for forgiveness.
• If the accused is going to plead guilty; prepare circumstances in mitigation. Circumstances in mitigation are factors that should be taken into consideration by the Chairperson in order to determine a less severe sanction. In other words circumstances that would persuade the Chairperson to consider a final written warning instead of a dismissal.
• If the accused believes that he / she is genuinely not guilty, then you will have to prepare a defence for the accused. You will have to present evidence to the Chairperson and call witnesses that will testify in the favour of the accused employee. You cannot force anybody to testify at a hearing, rather get another witness or alternative evidence.

Phase 3 - The hearing:

• The Chairperson will introduce himself and then ask all the parties present to introduce themselves.
• The hearing will normally be recorded.
• The role of the Chairperson is to listen both sides, analyze evidence presented, come to a conclusion as to whether the employee is guilty and also decide on an appropriate sanction.
• The Chairperson may ask questions to obtain clarity on the testimony of a witness or the evidence presented.
• The Chairperson will not allow shouting, threats and general unruliness during the hearing and may remove any party that makes itself guilty of such behaviour. All requests and objections must be made to the Chairperson.
• The Chairperson will confirm the rights of the accused employee and ask the employee to plead either guilty or not guilty after reading the charges to him / her.
• If the accused employee pleaded guilty the Chairperson will normally ask the accused to explain why he / she pleaded guilty and then give the initiator the opportunity to respond.
• If the accused pleaded not guilty then the initiator will start with an opening statement (short summary of what he / she wants to prove to the Chairperson) where after the employee or its representative will give an opening statement.
• The burden of proof is now on the initiator to prove that the accused is guilty of the misconduct and will present evidence and call witnesses.
• After a witness has testified you may cross examine the witness and the initiator may re-examine the witness.
• Once the initiator has finalized its case the accused employee will be given the opportunity to present evidence and call witnesses. The initiator may cross-examine witnesses and you may re-examine your witness after cross-examination.
• The Chairperson will then ask for a closing statement. The initiator will first give a closing statement followed by the accused’s closing statement. A closing statement is a short summary of what you want the Chairperson to remember and take into consideration in deciding whether the accused is guilty of the misconduct. You may not present new evidence during a closing statement.
• The hearing will now adjourn in order for the Chairperson to apply his or her mind to the matter.
• You need to ensure that you and the accused are on time for the hearing and that you will be available until the end of the hearing. It is not advisable ,nor in the interest of the person that you are representing, to ask another employee or shop steward to take over the matter unless you have fully debriefed that person on what transpired earlier during the hearing.
• Documentary evidence must be bundled and the pages must be numbered for easy reference. You will have to give a bundle of the exact same documents to the initiator as well as the Chairperson.
• Remember to only ask questions relevant to the charges. In other words only ask questions and present evidence that will prove that the accused is innocent.
• You may not ask leading questions. In other words you may not tell the witness what you want to hear. A leading question could be:

“It was a Toyota Corolla and it was blue, wasn’t it?”

The correct way of asking the question is:

“What was the make and colour of the vehicle?”

• You cannot rely on hearsay evidence. A written statement from a witness is hearsay evidence, unless the witness is present during the hearing to testify. Another example of hearsay evidence is; “I was told by Piet that Jan said Sannie said to Betsie that the following happened.” Betsie (and possibly) Sannie will have to testify at the hearing.
• If 40 employees witnessed an incident you do not have to call all 40 to testify. Three witnesses should be sufficient to prove your point.

Phase 4 – The Chairperson makes his finding:

• If the Chairperson finds the accused NOT GUILTY then the matter is finalized.
• The Chairperson shall ask for circumstances in mitigation and aggravation if the accused is found GUILTY.

Phase 5 – Mitigating circumstances:

• Circumstances in mitigation are factors that should be taken into consideration by the Chairperson in order to determine a less severe sanction. In other words circumstances that would persuade the Chairperson to consider a final written warning instead of a dismissal.

Such circumstances could be

• Age of the accused
• State of health
• Number of dependants and their age
• Length of service
• Previous disciplinary record
• Degree of remorse
• Education
• Offer to pay
• Self defence
• Necessity.
• Provocation.
• Coercion.
• Lack of intent.

During this phase new evidence may not be presented. You may also not appeal against the decision of the Chairperson at this stage.

Phase 6 – Circumstances in aggravation:

• The initiator will give reasons as to why he / she believes it is necessary for the Chairperson to consider a specific sanction such as a dismissal.
• The Chairperson is the one that decides as to what sanction will be appropriate, taking into consideration the company’s disciplinary code.

Circumstances in aggravation could include the following:

• Seriousness of the offence.
• Circumstances under which it was committed.
• Damage to or lack of trust in the employment relationship.
• Prior disciplinary record.

Phase 7 - The sanction:

• The Chairperson will adjourn the hearing in order to decide on an appropriate sanction.
• The chairperson will within a couple of days make his / her decision known.

Employers are advised to train their shop stewards on how to effectively participate in a disciplinary hearing. This may be a small investment but could contribute towards healthy industrial relations in the workplace.

17.2 The deregistered trade union

In October 2009 the Department of Labour de-registered UPUSA in terms of section 106(2A) of the Labour Relations Act. UPUSA subsequently appealed against this decision in terms of section 111(3) of the Labour Relations Act.

The union argued that they are not officially de-registered until such time that the appeal application has been decided upon. The department of Labour obviously disagreed with the union and the CCMA was stuck in the middle. Some 194 cases involving UPUSA were referred to the CCMA during the period October 2009 to April 2010 with almost all of them resulting in the same argument from the employers; in terms of the CCMA rules, rule 25 (b)(3) UPUSA was not a registered trade union.

Subsequently the CCMA referred the matter to the Labour Court and the Judge Molahlehi on 27 July 2010 ruled in favour of the respondents in this matter (the Department of Labour and Harmony Gold Mining). Judge Molahlehi said;

“It is therefore my view, firstly that the general common law rule practice that an appeal stays the enforcement of a judgment pending the outcome of an appeal does not apply to decisions made by the Registrar in terms of section 106 of the Labour Relations Act.

In the premises, I make the following order:

It is declared that the appeal against the decision of the first respondent (Department of Labour) cancelling the registration of the second respondent (UPUSA) does not suspend that decision.”

It is important to remember that a deregistered union remains a trade union to which employees may belong but employers do not have to recognize this union in terms of section 21 of the Labour Relations Act; neither may they represent employees at the CCMA.

For more information contact Jan du Toit on jand@labourguide.co.za

This article first appeared on the SA Labour Law website