Charging employees at disciplinary proceedings

Employers must be cautious in formulating charges against employees at disciplinary hearings. The employer must provide details of all disciplinary charges levelled against the employee and provide all, insofar as it is possible, documentation requested by the employee in order to prepare the defence.

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…”

In order for a disciplinary hearing to be fair, an accused employee needs to be given sufficient opportunity to prepare. This includes the employee’s right:

• to sufficient time to prepare a defence: Depending on the complexity of the charges, at least two full working days should be provided for the employee to prepare. Employers are encouraged not to rush into a disciplinary hearing without due consideration into what is deemed a fair opportunity to prepare.
• to fully understand the charges: Preparation is only realistically possible if the employee is provided with sufficient details. Charges without explanation, or sufficient details, may be too vague for the employee to appreciate the charges and consequently unable to prepare its’ defence.
• to documentation: All documents which the employee intends using in the hearing, as well as other relevant documents which the employee requests, should be provided by the employer.

In Oliver v Universiteit van Stellenbosch, Oliver, the employee, was given notice of a disciplinary hearing after he was implicated in certain irregularities at the university, identified by a forensic investigation report. He applied for a postponement as well as for certain documentation. However, the employee was not provided with further clarity pertaining to the charges, and his application was not granted. Consequently, he approached the High Court for relief.

The Court ruled that:

• The employee had been given insufficient preparation time, and it was wrongful for the university to refuse postponing the hearing.
• The employer had not argued that the documents requested by the employee were unavailable, irrelevant or confidential – it was therefore presumptuous of the employer to decide what documents would be needed by the employee.
• The charges against the employee were vague.
• Documents and further particulars which the employee required were to be provided by the employer.

In NUMSA obo Masina v Cobra Watertech (2009 2 BALR 140), the employer refused to provide further clarity on the charges against the employee, despite the employee requesting same well in advance of his disciplinary hearing. Accordingly, the arbitrator decided that accused employees are at the very least entitled to be informed of the charges levelled against them, even though disciplinary hearings need not conform to the rigours of criminal trial procedures. The Commissioner ruled that the employee’s dismissal was procedurally unfair, as the information related to the charges against the accused lacked adequate detail, and the employer was ordered to pay compensation to the employee.

It is clear that the employee’s right to prepare for a disciplinary hearing is highly revered. It serves no useful purpose to unnecessarily (without legal standing) withhold documents from an employee. An employer will not benefit from providing an employee with vague or general charges: rather this will result in the employee being prevented from understanding the specific charges against him, meaning he will be unable to prepare a proper defence, and the employer’s actions will be deemed unfair.

Charges against employees in disciplinary proceedings must be formulated clearly, comprehensively, legally and in a manner both useful to the employee to prepare the defence and to the employer to prosecute the charges as levelled against the employee.