The chairperson of a disciplinary hearing is not allowed to find the employee guilty or to fire him unless you, as the prosecutor/complainant, provide sufficient and clear proof that the employee is guilty of an offence serious enough to merit dismissal. If the employee is fired without such proof then the CCMA or bargaining council can reinstate the employee with full back pay.
It is therefore essential for all managers and officials who prosecute at disciplinary hearings to develop the highly complex skill of preparing the evidence necessary to prove the case against the employee.
Course outcomes include an understanding of:
- The dangers inherent in implementing discipline and dismissal
- The procedural rights of the employee
- The disciplinary process to be followed
- Effective investigation of allegations
- How to formulate the disciplinary charges
- How to prepare the case documents and other evidence
- How to prepare witnesses
- How to prepare for cross-examination
- How to combine all evidence to ensure a successful case at a disciplinary hearing
PROGRAMME
DAY 1
| PREPARING FOR DISCIPLINARY HEARINGS |
|
| 09H00 |
Procedural and Substantive Fairness |
O9H45
|
Reinstatement and Compensation |
| 10H30 |
Types of Issues Requiring Corrective Action
- Misconduct
- Poor performance where employee is at fault
- Poor performance due to illness or injury
|
| 10H45 |
Tea |
| 11H00 |
Preparing to Prove Substantive Fairness
- The accused employee must have known the rule or ought to have known it.
- The rule must have been a fair one and consistently applied
- The complainant must have proved that the accused employee was in-fact guilty as charged
- The corrective action must have been a fitting one taking all circumstances into account.
|
| 11h30 |
Preparing to Prove Procedural Fairness
- Preparation
- Unbiased chairperson
- the right to an interpreter
- Audi alteram partem - To be heard
- Representation
- Calling of witnesses
- Cross-examination of witnesses brought against the accused
- A verdict and the reason
- Mitigating circumstances
- The right to be informed of the corrective action or penalty and the reasons for it
- Appeal (if the employer has an appeal policy or practice
|
| 12h15 |
Preparing to win the Disciplinary Hearing |
| 13h00 |
Lunch |
| 14h00 |
Investigation: Understand the Case |
14h30
|
Ordering the Evidence
- Logical sequence
- Sift out irrelevancies
|
| 15h00 |
Evaluate the Evidence |
| 15h15 |
Tea |
15h30
|
Prepare your Witnesses
- Go through your questions and documents
- Discuss potential questions expected from opposition
|
| 16h00 |
Prepare for your Cross Examination |
| 16h30 |
Weaving a Watertight Case
- Providing corroboration
- Avoiding confusion
- Removing contradictions
- Sharpening your questions
- Tying up your case
|
DAY 2
| PREPARING FOR DISCIPLINARY HEARINGS (Cont) |
|
| 09H00 |
Prepare your Closing Argument |
O9H15
|
Selecting and Wording the Charges
- Basing the charges on the facts
- Using clear, simple and non-legalistic language
|
| O9H30 |
Notify the Accused of the Hearing
- Ensure that the employee understands
- Inform the employee of the charges
- Inform the employee of his rights and obligations
- Signatures
|
| O9H45 |
Practical Exercise |
| 10H30 |
Tea |
| PROSECUTING THE DISCIPLINARY HEARING |
|
| 10H45 |
Your Opening Statement |
| 11H00 |
Questioning your Witnesses
- Ensuring mutual understanding
- Explaining the purpose of the testimony
- Avoiding confusing questions
- Avoiding anomalies
- Doing a full rehearsal
|
| 12H00 |
Taking Notes during Cross Examination |
| 12H30 |
Protecting your Witness |
| 13H00 |
Lunch |
| 14H00 |
Dealing with Disruption of your Case
- Use of warnings
- Adjournments
- Evictions
|
14H30
|
Re-examination |
| 14H45 |
Cross Examining Opposing Witnesses
- Take detailed notes during testimony
- Ask for an adjournment
- Challenge all disputed items on record
- Put your version to the witness
|
| 15H00 |
Tea |
15H15
|
Raising Objections |
| 15H30 |
Closing Arguments
- Summary of facts presented
- Show links to and significance of facts for your case
- Expose opponent’s weaknesses
- Use case law
|
| 16H00 |
Practical Exercise |
ABOUT YOUR EXPERT PRESENTER
IVAN ISRAELSTAM, CEO of Labour Law Management Consulting, is a labour law and industrial relations specialist with an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. In addition to his 24 years of hands-on work in this field he is a regular labour law columnist for a number of newspapers and journals including “The Star” newspaper’s ‘Workplace”.
Ivan was appointed in 1996 as a part time commissioner with the Commission For Conciliation, Mediation and Arbitration. He speaks regularly on television and radio and at conferences and seminars on subjects including labour law, Affirmative action, discipline, union negotiations and conflict management. Ivan is currently the Chairperson of SACOB’s Labour Affairs Committee and the main author of the “Labour Law for Managers Practical Handbook”.
In recognition of his distinctive contribution in this field Ivan has been included in the book “Who’s Who in Southern Africa”
