As a professional who chairs disciplinary hearings for a living, I can safely say I have probably seen it all when it comes to the written charges in a Notice of Disciplinary Hearing. Often, these charges are not factually accurate or are written in a form that resembles a statement of sorts – a lengthy paragraph ultimately containing more than one charge but few specifics.

Keep it simple. Schedule 8 of the Labour Relations Act does: “The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand”.

The problem often starts with an inadequate investigation. The HR practitioner draws up charges with half the information and discovers in the hearing that the charges do match the actual offence. Time invested in an investigation will save your business time later.

Simply, charges should include:

• The date, time and place of the alleged offence.
• How that alleged offence is defined – often according to the disciplinary code. For example, “dishonesty” or “insubordination”. Some clients prefer to leave this “label” off and merely classify the allegation as “misconduct” – they prefer to leave it to the chairperson to define the offence. This is acceptable provided the charge contains a proper description of the alleged offence.
• Detail of the incident/alleged offence, normally in the following format: “It is alleged that you were insubordinate in that on (date) at (time) and in the (area) you refused an instruction from your Superior (name) to attend to a client (name) on the shop floor”.
• Alternative charges should be used more often – for example, “dishonesty” or alternatively “failure to follow a company procedure”.
• As much as charges should not contain irrelevant information, they should also not be too restrictive as often evidence does arise in the hearing that did not appear in the investigation. Therefore, it is wise to include options, for example: “you refused and/or failed to carry out an instruction”. Remember, if you have only charged an employee with “refusal” and in the hearing it becomes clear that the employee merely “failed” to carry out the instruction, the employee will be found “not guilty” – the charge may not be modified in the hearing to match the offence.

My advice: spend more time on the investigation before the hearing and then ensure that the charges are properly drafted by an experienced industrial relations or human resources practitioner. Your foundation must be solid.

Start well, end well.

Bridge Labour Solutions specialises in disciplinary issues. We provide a valuable and affordable resource throughout the country to conduct investigations, draft charges, act as Initiator in hearings or to chair disciplinary matters or appeals. See www.bridgelabour.co.za or contact us on info@bridgelabour.co.za

Wayne Bolton
Managing Director