Many employees find themselves faced with the prospect of appearing at a disciplinary hearing. A charge is the reason for the action or the offense giving rise to discipline or other administrative action. If the unsatisfactory work performance is due to incapacity (cannot), the following must be adhered to: A formal evaluation must be made of the employee’s performance. The “Charge Sheet” may read thus –. Such a written notice will also state the place where the disciplinary hearing will be convened, date, time and the particulars of the charge which the employee will be facing. During a typical calendar year, the Department imposes discipline on 3,000 (or more) licensees in the various professions and occupations it regulates, yet less than 200 formal evidentiary hearings are held. Applicant received a notice on 17 April 2003 to attend a disciplinary hearing on 25 April 2003. The proliferation of charges creates a situation where it acts as a type of “catch all” approach. The Labour Court found further that the charge need not have been for “gross” insubordination and that since the employee admitted to having endangered the life of the foreman, it … Using the explanation to formulate a third charge took the issue beyond the realms of fairness. SPLITTING CHARGES: Do multiple charges arising from a single act of misconduct make dismissal more likely? Visit www.namhr.com. Count 3: Failure to act with the due diligence of an executive in your position. He was also late for work on 24 December. May an employer deviate from disciplinary procedures in misconduct cases? Therefore we advise employers to have a formal hearing as the employer can then ensure that all the paperwork is in order if the matter proceeds to the Commission for Conciliation, Mediation and Arbitration (CCMA). manager. 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. There are 6 requirements for a disciplinary hearing to be fair, otherwise an employee During a disciplinary hearing, an employee pleads guilty to a charge of fraud and is dismissed. Let’s look at the basics. The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing where it would be prejudicial to do so. 32.1 According to the minutes of the disciplinary hearing (exhibit A7) it is the Initiator who suggested to the chairperson that the third and the second charges should be combined. If the hearing is not fair, the employee can refer an unfair dismissal dispute to the CCMA or appropriate Bargaining Council. If the record of the disciplinary hearing is disregarded, a litigant may lead evidence that was not led at the disciplinary hearing and/or did not form part of the evidence to which the employee was found guilty on. At the end of the hearing. disciplinary hearing to include an averment that Applicant disobeyed an order not to disclose any information in the schedule. In Ntshangane v. Speciality Metals CC [1998] 3 BLLR 305 (LC), the Labour Court found that the employee had stayed away from work without permission on 23 December, as well as on 2 and 3 January. SAMPLE DISCIPLINARY OFFENCES / ASSOCIATED CHARGES ABSENTEEISM AND TIME KEEPING OFFENCES DEFINITION SAMPLE CHARGES SAMPLE OFFENCES Unauthorised Absenteeism/leave Refers to being absent from work without permission, and without a reasonable excuse, or a medical certificate. Should you admit to the charges before or during the disciplinary enquiry, it shall be deemed that you are guilty of the charge. Regarding the third charge, the Labour Court held as follows: “If the applicant had a good and acceptable explanation for his lateness and absenteeism, it would have been unfair to dismiss him under those circumstances. 'Notification of charge - Yourself . The charges must be specific enough for the employee to be able to answer them. The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing, where it would be prejudicial to do so. A fair disciplinary hearing gives the employee an opportunity to prove his innocence. Category Discipline Sub Category Disciplinary hearings Document Type Information Sheet Filename Example of charges in terms of disciplinary code IS.pdf Publish Date 15/09/2014 Price R70.00 Author Johanette Rheeder Document Format PDF. It’s a good idea for the employer to take some time after the hearing to consider the case carefully before making a decision. An administrative law judge is not present during a Disciplinary Conference and no transcript of the meeting is prepared. TIP:          Employers should confine the description of the misconduct to an act defined in its Code of Conduct – or to an act which is generally accepted as misconduct if the act is not specifically referred to in the Code. 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. Will the employee be able to prove his possible innocence during arbitration by the Commission for Conciliation, Mediation and Arbitration (CCMA) … The Counts are referred to as the practice of “splitting charges”. NOTICE OF DISCIPLINARY ENQUIRY – CHARGE SHEET <> «Date» «Title» «Initial» «LastName» «Company» «Address1» «Address2» «PostalCode» Dear «Title» «LastName» NOTIFICATION OF DISCIPLINARY ENQUIRY You are hereby notified that a disciplinary enquiry will be held on «Date1» at «Time» in «Venue» to Should a verdict of guilty be arrived at by the person who chairs the enquiry, you will then be entitled to give evidence in mitigation of sentence, concerning your personal circumstances, length of service, previous disciplinary record and work performance. You will also find free HR policies, an HR Careers Page, an Events Calendar and interesting HR articles and industry updates. 5 Points to bear in mind when drafting allegations 1. Unless they are members of a trade union that is present in the workplace, they find themselves without any professional assistance and have to rely on information gained before the hearing and at best the support of a colleague at the hearing itself. The charges against the employee were vague . Others have been accused of … committing breach of good faith to the company. Others have been accused of duplicating the charges. In Article Archive, Article Archive - Home by Barney Jordaan 19 March 2018 Leave a Comment. Find out more ... Charges, suspensions and Independent Regulatory Commission hearing results. It starts with the choice of language. Maak asseblief seker dat u e-pos korrek ingesit word in die veld hieronder, e-pos word slegs by geldige e-posadresse afgelewer. Disciplinary hearing: Unfair splitting of charges, Things to consider when going into business with family and friends, LinkedIn – if you’re serious about networking and career management. That he is a breadwinner should not be a determining factor for … The fact that the applicant had no good or acceptable reason for being late and absent made it proper for him to be charged. The employer was to provide the documents and the further particulars required by the employee. Wenceslaus Murape During disciplinary hearings, employers have often been accused of splitting charges being levelled against employees. Describe what the employee did as if a story is being told to someone. 14. Accordingly, the Department or employer urged me to impose a sanction of a dismissal. Contact namhr@iway.na for more information. FA charges - November 2020. Often, the real disciplinary charges emerge only during the hearing. An employee must be made aware of the charges against him or her. dismissed Mr Rabie’s preliminary points and ruled that the disciplinary hearing would proceed on 19 February 2018. Notice of a disciplinary hearing being late for work without good reason/permission; being absent from work without good reason/permission; and. A disciplinary hearing will be held when and where it is considered most convenient and appropriate in the circumstances, and the parties involved will be expected to arrange their schedules accordingly. This right is three fold: The right to sufficient time to prepare a defence. Then it adds “Counts” as sub-species of misconduct arising from this single act of alleged misconduct. It could also be to create the impression that the alleged act of misconduct is more damning than meets the eye. The record of the disciplinary hearing ought to be used to understand how the employer arrived at the decision to dismiss 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. How to use disciplinary in a sentence. Disciplinary Enquiries and Drafting of Charges for a Disciplinary Enquiry HRworks.co.za is an Online National Human Resources Directory covering all HR needs in the Human Resources Profession. The right to fully understand the charges. The employer’s disciplinary code, which is expressly recorded as being a guideline, provided that a final written warning be issued for misconduct of this nature. The best way to describe this is by way of an example. There’s the risk that the splitting of charges could appear as if the employer is “…throwing the book at the employee” as the Labour Court has described it[1]. The employee could face dismissal on this simplified version if the enquiry found sufficient evidence to make a finding of guilt on the probabilities. 1. At the end of the hearing. Labour Lawyer & Mediator He eventually reported for duty, but his explanation was later found to be false. “No” - said the Labour Appeal Court (“LAC”) in an appeal decided in August 2019[1] There’s often a similarity between misconduct charges in the workplace and charges in … The accused may also be charged with different counts in the alternative. A disciplinary hearing was held arising out of the employee’s conduct. The applicant’s second witness was Belinda Evelyn Strydom (Strydom) the admin. A disciplinary hearing can be formal or informal, but it is essential that the employer can prove that the hearing was held. A. The proliferation of charges creates a situation where it acts as a type of “catch all” approach. In charging him on account of lateness and absenteeism the respondent made an election, and having made this election, decided to formulate a third charge. Disciplinary hearings Your employer should not take any disciplinary action before meeting with you first and discussing the problem. Breach of the trust relationship is the test to be applied to … In other words the Initiator re-iterated his previous statement. SPLITTING CHARGES: Do multiple charges arising from a single act of misconduct make dismissal more likely? The Chairman will consider, in his sole discretion, timely requests for an adjournment of the hearing supported by reasons from the parties, and may require supporting evidence. The judge added, “Where a single incident has different factual components that comprise different forms of misconduct and have distinguishable consequences, it isn’t splitting of charges to put several disciplinary complaints to an employee.”. Alternatively, the employee is found guilty, but the sanction recommended by the chairperson is short of a dismissal. The employee admitted to having behaved improperly but denied having undermined the authority of the foreman or threatened his life. It is therefore important that the offences or allegations against an employee are formulated correctly or properly on the “Notice to attend a Disciplinary Enquiry”. Concurrent disciplinary and criminal investigations. On this basis it was therefore correct in finding that there was an unfair splitting of charges relating to the third charge. Hendrik van der Hoven . According to Binks, the charges were explained to the third respondent at the disciplinary hearing. The possible prejudice due to the unfair splitting of charges may include the following: Therefore, in an instance of unfair splitting of charges, the charge sheet may be considered defective. It would have been sufficient to describe the allegation simply as “Gross Misconduct, alternatively, Gross Negligence”. It is therefore important that the offences or allegations against an employee are formulated correctly or properly on the “Notice to attend a Disciplinary Enquiry”. A common failing found in tribunal claims is that the same individual is in charge of the disciplinary process from start to finish. The notice must also contain a detailed description of the charges brought against the employee, including the date, time and description of the incident(s). On 7 January the employee was handed a charge sheet accusing him of: The first two charges seem fair and just, as both are based on separate actions of misconduct which took place on separate occasions. - The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing, where it would be prejudicial to do so. “In my view this was unfair. A further problem is that the employer would have to prove each of the elements of the split charges to make them stick. Each charge is composed of elements which are the unique components that must exist and can be proven to support the charge. 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. For example: The employer alleges that a senior executive sent a confidential document to a fellow executive to assist him with his preparations for a disciplinary enquiry. The importance of adhering to the terms of the charges. What if an employee uses his private cell-phone to take unauthorised photos inside the employer’s factory? Workplace disciplinary enquiries have morphed into processes which mimic criminal trials. disciplinary hearing. Workplace disciplinary enquiries have morphed into processes which mimic criminal trials.It starts with the choice of language. This is when, if the complainant does not apply his mind, when charges are split and employees end up with a host of charges, when scrutinized ends up to be charging the employee twice or even more for the same offence. However, presiding officers are bound by the charge sheet and cannot find an employee guilty of charges not mentioned in the charge sheet. No representation is made or warranty given as to its content. INCOMPATIBILITY: What can an employer do about conflicting personalities? Over – elaboration will not make dismissal more likely – it could make it less likely. Forms: Disciplinary Hearing Strictly Private & Confidential Sample Page 2 of 8 This document is informational only and for personal use only. This article considers the role played by the charge sheet in a disciplinary hearing – and the importance, as a matter of fairness, for Tribunals (a) to confine themselves to those charges when determining a particular case; and (b) to give reasons in relation to each of those charges. [15] “The charges must be specific enough for the employee to be able to answer them. After a decision has been taken to charge an employee with misconduct, a disciplinary hearing is normally convened. The employee was called to a disciplinary hearing to face the following four charges of misconduct: gross negligence (the nature and extent of which were not specified in the charge sheet); dereliction of duty, as a result of his failure to ensure there was an escort vehicle when the aeroplane landed; failure to subject himself to a polygraph test at Fidelity’s request; and failure to comply with instructions, in … You will also find free HR policies, an HR Careers Page, an Events Calendar and interesting HR articles and industry updates. Urgency [8] The DTI argued that the matter is not urgent as Mr Rabie receivedthe charge sheet together with the notice to attend the disciplinary enquiry set down for The charges must withstand the scrutiny of the CCMA so that the company will not waste money and time by losing cases. I agree. This detracts from the merits of the primary charge. proceeding with disciplinary charges dealing with the same alleged conduct. A sanction may be handed down on multiple charges, resulting in a more severe sanction than in an instance of a single charge. This position was further better demonstrated during the arbitration proceedings, … Issue the employee with a notice to attend a disciplinary hearing On the notice the employer must state the date, time and place where the hearing will take place. The scope of the charges becomes too wide, which may cause the accused employee to be prejudiced at the disciplinary hearing. Another practice frequently used by employers is to use overarching charges such as: conduct in breach of the trust relationship. he was called upon to answer to these charges in a disciplinary hearing, it meant that the charges were very serious against him. I have been given a Notice to Attend a Disciplinary Hearing with the charge being Gross Negligence by my employer's HR department. It is a document containing the allegations of misconduct, called the ''Charge", leveled against the employee concerned. Count 1: Direct challenge to the authority of management; Count 2: Breach of your contract of employment. The success of internal disciplinary hearings depends on the formulation of the alleged misconduct. The applicant must establish a reviewable irregularity by the... Johannesburg Office – 2nd Floor, 1 Bompas Road, Johannesburg, 2196, South Africa. The charges against the employee were vague; The employer was to provide the documents and the further particulars required by the employee. 2006, charges were served on the Applicant, and he was invited to attend a disciplinary hearing to be held on 27 January 2006. Patrick Deale on Radio 702: Rights of Employees Who’ve Been Reinstated After a Disciplinary Hearing then Later Fired. Disciplinary definition is - of or relating to discipline. Disciplinary hearings nowadays require a more legalistic approach with the interpretation of misconduct charges. For more details on holding disciplinary hearings, you can use Discipline and grievances at work: the Acas guide (PDF, 841KB, 79 pages). Section 83 of the Criminal Procedure Act 51 of 1977 provides that where it is doubtful which of several offences is constituted by the facts of a case, an accused may be charged with ‘the commission of all or any such offences’ and such counts may be tried together. The unfair splitting of charges can be seen in a case where a specific set of facts may be tantamount to more than one type of misconduct. 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. The charges against the employee were vague; The employer was to provide the documents and the further particulars required by the employee.

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