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Initiating in Misconduct Disciplinary Hearings

BY Wayne Bolton

Very few people enjoy initiating in disciplinary hearings. Yet we all know that maintaining discipline is essential to ensuring that the business that we rely on runs efficiently and in compliance with good business principles and indeed, the law.


When you have been asked to represent the company in a disciplinary hearing in the capacity of Initiator, you effectively become the prosecutor, to use legal jargon. Where to start?


My advice is to start with the creation of a “bundle” of documents which run in a logical and sequential order. This must be paginated and a copy must be presented to the Chairperson, Employee (and representative) and any witnesses that may be called.


By following your bundle when presenting your evidence in chief, you will ensure you do not miss important evidence and argument, and that you convey your evidence in the clearest possible way to the Chairperson – preferably “tell the story” from start to finish and support this with evidence.


In cases of misconduct, you should use the guidelines presented in Schedule 8 of the Labour Relations Act as the basis of your evidence, and consequently your bundle.


Following the guidelines of Item 7 of Schedule 8 of the Labour Relations Act any person who is determining whether a dismissal for misconduct is unfair should consider:


 (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and


(b)       if a rule or standard was contravened, whether or not-


           (i)        the rule was a valid or reasonable rule or standard;


          (ii)       the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;


          (iii)      the rule or standard has been consistently applied by the employer;

The Chairperson of the disciplinary hearing in which you are initiating should also consider the above when deciding on the fair outcome of the disciplinary hearing.


Therefore, these requirements should form the backbone of your bundle and your evidence.


In brief, in discharging the burden of proof as the Employer you should present evidence that shows the source of the rule, that the Employee was aware of the rule yet breached it, and that the Company has consistently applied the rule.


Keep it simple and focus on the key elements of the allegations.

 February 28, 2020
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