human resources manual · extent of the alleged transgression by means of consultation with the...

Human Resources Manual © Phatshoane Henney inc. 2008

www.c i l reyn.co.za

Discipl inary Pol icy © P h a ts h o a n e H e n ne y i n c . 2 0 08

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1. PURPOSE

To apply consistent, fair and legal disciplinary procedures to ensure the maintenance of discipline at

the workplace and the fair and equal treatment of all employees.

2. PRINCIPLES

(i) To effectively regulate the interaction between the employer and employees in respect of

discipline, to maintain discipline and to create awareness of disciplinary offences or

transgressions.

(ii) To ensure that any action is taken at the lowest possible level.

(iii) To ensure fair, equal and consistent treatment of all employees.

(iv) To facilitate upward and downward communication.

3. DISCIPLINARY POLICY AND PROCEDURE

3.1. GENERAL

For any misconduct at the employer’s workplace and/or breaches of the employment policies,

practices and procedures of the employer, this disciplinary policy shall be applied.

Employees have an obligation to maintain reasonable efficiency and standards of work and to further

the employer’s business interests, to be respectful and obedient to superiors and to generally refrain

from misconduct.

3.2. DEFINITIONS

The following definitions are applicable to this policy, unless the context indicates otherwise:

“Appeal” a process conducted by an independent senior manager or an external person with legal qualifications, to consider from the records of the disciplinary enquiry such grounds of dissatisfaction as raised by the employee or the employer in relation to the disciplinary hearing.

“CCMA” means the Commissions for Conciliation Mediation and Arbitration.

“Conduct or misconduct” In respect of an employee is interpreted to be the unauthorised and / or inappropriate action by the employee in contravention of the rules and regulations of this policy and or in breach of his/her contract of employment or any other policy and practice of the employer.

“Day” For the purpose of this policy, a normal working day excluding Sunday, Saturday and Public Holidays.

“Disciplinary hearing/enquiry”

A formal meeting, chaired by a manager of the employer or any of the company’s subsidiaries or an external person with legal qualifications, conducted to obtain the relevant facts of the alleged misconduct, and to


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take the necessary corrective action.

“Employee Representative”

A colleague or co-employee or trade Union official from a trade Union recognized by the employer.

“LRA” The Labour Relations Act 55 of 1996.

“Management” Includes employees from supervisory level upward for the purpose of discipline.

3.3. DISCIPLINARY POLICY

The employer supports the progressive approach to discipline expounded in the LRA and

acknowledges that the primary purpose of disciplinary steps should be to correct the behaviour of

employees as opposed to their punishment. The employer also recognises all rights of employees in

terms of the LRA and the Constitution of the Republic of South Africa.

It is the employer’s belief that a formal disciplinary procedure is essential for the efficient operation of

its business, the fair and consistent treatment of all employees, and healthy industrial relations. To

achieve this aim, the following principles must be observed:

(i) Administering discipline, the promotion of stability and job security, and the just and equitable

treatment of all employees, is the responsibility of Management.

(ii) Management must employ a system of discipline focused on the correction of the employee’s

behaviour through informal counseling and/or warnings by his direct supervisor as a means to

effective, prompt and expeditious application of discipline.

(iii) Management will apply a formal disciplinary process in cases of grave disciplinary

infractions/misconduct, or where informal counseling has been unsuccessful, or where there

are repetitive acts of similar misconduct despite warnings given for such misconduct.

(iv) Management accepts that no employee will be disciplined without a fair hearing and an

opportunity to clearly state his/her case, unless the employee in question waives this right by

failing to attend such a hearing through his/her own choice. In such an instance, the hearing

may proceed in his/her absence.

(v) Clear evidence of a breach of the employer’s rules, regulations, policies, and practices, or any

legislation which the employer is statutorily bound to comply with, or any other prescripts in

force at workplace must first be established before any dismissal can be entertained.

(vi) Careful consideration must be given to the factual circumstances surrounding alleged

misconduct before disciplinary action is taken.

(vii) Management must reasonably strive to, with due regard to the circumstances of each case,

be consistent in taking disciplinary action.


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(viii) The contents of any document handed to the employee in terms of this disciplinary procedure

must be explained to him/her.

(ix) An employee against whom disciplinary action has been instituted in terms of the disciplinary

procedure shall not be entitled to invoke the grievance procedure of the employer should

he/she disagree with the disciplinary action taken by the employer.

3.4. DISCIPLINARY PROCEDURE

3.4.1. Scope of the disciplinary procedure

This disciplinary procedure must be used for determining the guilt or innocence of an employee facing

disciplinary charges.

3.4.2. Representation and/or assistance of employees during disciplinary proceedings

An employee is entitled to be represented by an Employee Representative at any formal disciplinary

proceedings.

3.4.3. Procedures regarding disciplinary offences

If an employee is accused of a disciplinary offence, the employer must appoint an investigator to

investigate the allegations against the employee. The investigator must investigate the nature and

extent of the alleged transgression by means of consultation with the employee and possible

witnesses, and gather all relevant documentation and exhibits.

Having assembled all documentary evidence and statements from the witnesses, the investigator

must assess these and advise the employer of the appropriate steps to be followed, that is either a

formal enquiry or an informal enquiry.

If, after consultation (as described above) the investigator is of the opinion that the alleged misconduct

does not warrant the institution of a formal disciplinary enquiry, the employer must:

(i) explain to the employee the acceptable conduct required of him/her;

(ii) explain the possible consequences of a repetition of the offences to him/her;

(iii) provide counseling and or give a verbal or written warning depending on the seriousness and

circumstances of the infraction committed; and

(iv) a record of the corrective action taken must be kept by the Office Manager/HR Department in

the personnel file of the employee.


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Notwithstanding the above, the employer may decide to refer any form of transgression for immediate

formal disciplinary action if, in the opinion of Management the nature and/or seriousness of the

offence justifies such action.

In the case of serious or recurring offences the matter must be referred to formal disciplinary enquiry.

If an alleged offence is referred for formal disciplinary action, a prosecutor/initiator (who may not

necessarily be the investigator who investigated the alleged misconduct) will be appointed by the the

employer.

The prosecutor shall consider the available evidence, and conduct further investigations should such

be deemed appropriate, and compile the charge sheet against the employee as well as a notice of a

disciplinary enquiry.

The notice of the disciplinary enquiry and the charge sheet must be presented in writing to the

employee and the employee must sign an acknowledgement of receipt.

The written charge sheet must be served on the accused employee by means of personal service or

by means of delivery at the last known residential address of the employee. The charge sheet must

be accompanied by an explanation of the accused employee’s rights regarding the disciplinary

procedure.

The accused employee has the following rights regarding the charges made against him/her:

(i) The right to hear the charges and to receive them in writing.

(ii) The right to object against the presiding official or the composition of the disciplinary panel.

(iii) The right to call witnesses and to cross-examine all witnesses.

(iv) The right to inspect any document presented as evidence.

(v) The right to have his/her case concluded within a reasonable time.

(vi) The right to have an interpreter present if necessary to translate the proceedings in a

language that he/she understands.

(vii) The right to be represented by an Employee Representative;

(viii) The right to receive notice of a disciplinary hearing timeously (at least 48 hours before the

convening of the disciplinary hearing).

(ix) The right to state his/her case and to defend him/ herself against the stated charges.

(x) The right to an outcome (decision).


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(xi) The right to only have his/her previous disciplinary record taken into consideration after guilt

has been proven.

(xii) The right to present mitigating circumstances before a decision is taken on a suitable

disciplinary sanction.

(xiii) The right to be informed of any disciplinary sanction.

(xiv) The right to be informed of his/her statutory right to refer a dispute about the outcome of the

hearing to the CCMA.

(xv) The right to be protected against victimisation which may result from any statements and/or

allegations or other actions during disciplinary investigation.

The employer shall appoint a person, who need not be an employee of the employer, with or without

legal qualification, to act as presiding official during the disciplinary investigation.

The prosecutor will determine the time, place and date of the disciplinary hearing and to set this out

clearly in the notice calling the employee to appear at the disciplinary enquiry.

The presiding official will base his/her finding regarding the guilt or innocence of an employee on a

balance of probabilities.

The accused employee’s absence at a disciplinary hearing without acceptable excuse will not affect

the validity of the findings of the investigation, and a disciplinary hearing may continue in the absence

of an employee if the employee does not have an acceptable reason for his/her absence from the

hearing.

After all evidence and arguments have been presented at a disciplinary investigation the presiding

official must make a finding of either guilty or not guilty in respect of each of the charges against the

employee.

If the accused employee is found guilty, the presiding official must consider mitigating and aggravating

circumstances from the employee and the employer respectively, pursuant to which process, the

presiding official may make a recommendation to the employer as to the appropriate sanction to be

imposed. Sanctions imposed may include one or more of the following:

(i) corrective counseling by the employee’s supervisor.

(ii) a warning/ reprimand to the employee and direction that the warning be recorded in the

disciplinary record of the employee involved.

(iii) a final warning regarding the offence and direction that the final warning be recorded in the

disciplinary record of the employee involved.


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(iv) suspension without pay for a period considered reasonable by the presiding official up to a

maximum of 2 months suspension.

(v) a recommendation that the employee be dismissed.

(vi) a recommendation that the employee be demoted as an alternative to dismissal.

(vii) any other just and equitable punishment.

If an employee is dismissed, the dismissal will come into effect from the date the employee receives a

letter of termination of service from the employer. No application for appeal shall delay the coming into

effect of this sanction.

The fact that criminal and/or civil proceeding in respect of the offence in respect of which the

employee is charged are/is pending before any court of law and the fact that a person has been found

guilty or not guilty during criminal or civil proceedings does not divest the employer of the authority to

take disciplinary steps against the person involved.

All documentation related to the formal disciplinary steps taken against an employee must be retained

in the personnel file of the employee.

Warnings must be retained on the personnel file and are valid for the following time periods:

(i) Verbal warnings - 3 months

(ii) Written first warning - 6 months

(iii) Final warning - 12 months

Any warning so recorded even where its period may have expired may be used against an employee

in any proceedings before the Commission for Conciliation Mediation and Arbitration (CCMA).

3.4.4. Suspension from the employer’s service

The investigator/prosecutor when conducting an investigation or initiating a formal enquiry, may if

necessary -

(i) for the protection of witnesses;

(ii) to prevent interference with the prosecutor’s investigation;

(iii) to prevent disruption in the workplace;

(iv) to prevent the perpetuation of unacceptable behaviour; or


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(v) where the employee/employer relationship is seriously affected,

suspend the employee with full benefits and salary pending the outcome of the disciplinary hearing.

This suspension is without prejudice to the employee’s rights to remuneration and benefits and the

opportunity to defend allegations directed at him/her. Any suspension must be in writing and must

address the following issues:

(i) The date the employee must return to work or the date by which he/she will be contacted

again by the employer, including how he/she will be contacted. Suspension may never be

open-ended and should be subject to a reasonable indication of a time period or process. The

period of suspension can however on reasonable grounds be extended by the employer.

(ii) The rights of access or restrictions in respect of access imposed on the employee in relation

to the employer premises and his/her workplace during the time of the suspension. Contact

details must also be provided for requests by the employee to obtain permission to visit the

employer’s premises for the purposes of obtaining information necessary to conduct his/her

defence. Such requests should not unreasonably be refused.

3.4.5. Appeal

3.4.5.1. General

An employee who regards any disciplinary action taken as unjustified may appeal against the

disciplinary action in writing, within 3 working days of being informed of the disciplinary action.

An appeal hearing shall be considered by a manager more senior than the manager who imposed the

discipline. If a higher level does not exist or is not appropriate, a manager of the same level as the

manager who imposed the discipline shall preside in the hearing or the employer may elect to appoint

an external presiding official from any of its associated companies or subsidiaries or an external

chairperson who is legally trained.

An employee wishing to lodge an appeal shall fill out an appeal form, including a statement outlining

the grounds for appeal and shall hand it to the Office Manager/HR Department for recording and

forwarding the documents to the chairperson of an appeal hearing.

An appeal hearing in respect of a dismissal is not a rehearing of the disciplinary enquiry and shall be

considered only on the records of the disciplinary enquiry. The presiding official conducting the appeal

shall exercise his/her discretion regarding whether new or additional evidence should be received

from the employee and/or whether any witnesses should be recalled.

The presiding official may either confirm or set aside any decision in whole or in part.

3.4.5.2. The appeal procedure


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Should an employee wish to appeal against the presiding official’s disciplinary sanction he/she must

inform the Office Manager/HR Department of his/her intention.

The employee shall lodge the appeal form with the Office Manager/HR Department within 3 working

days of being informed of the disciplinary action.

All relevant documentation, pertaining to the appeal case must be given to the presiding official.

The findings of the presiding official in the appeal will be made available to the employee in writing

within a reasonable time after the lodging of the appeal.

Where the presiding official in the appeal process upholds the decision to dismiss, the presiding

official must inform the employee that he/she can refer the dispute to the Commission for Conciliation,

Mediation and Arbitration (CCMA).

3.5. CATEGORIES OF DISCIPLINARY OFFENCES

A list of disciplinary offences is provided below. This list is not exhaustive and the employer may

subject the employee to disciplinary action even in respect of offences not listed below.

The head of department/line manager, in the case of informal action, and the presiding official of the

disciplinary enquiry in the case of formal disciplinary action, shall impose any sanction he/she deems

appropriate having regard to the nature and seriousness of the offence, the circumstances of the

offence, the employee’s demeanor, the employee’s personal circumstances, and the employees

previous disciplinary record.

The disciplinary offences as set out in the categories below are not cast in stone and serve as

guidance only to the presiding official. The presiding official has at all times a discretion to impose an

appropriate disciplinary sanction which is just and equitable in relation to the offence.

The disciplinary offences listed herein under are categorized according to their gravity into:

CATEGORY A - very serious disciplinary offences which may lead to dismissal, or

suspension without pay, or demotion on the first commission or occurrence thereof.

CATEGORY B - serious offences which may lead to dismissal, or suspension without pay or

demotion and this may apply in instances where a final written warning has already been

issued to an employee and is still effective as at date of commission of the offence.

CATEGORY C - less serious offences which may lead to dismissal, or suspension without

pay or demotion and this may apply in instances where more than one warning be it verbal,

written or final written warning had been issued to an employee as a corrective measure and


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such warnings has proven to be ineffective due to repetition of similar misconduct on the part

of an employee.

List of disciplinary offences:

CATEGORY A

A1 Gross insubordination: refusing or failing to obey lawful and reasonable instructions/orders, or failure to disobey safety rules and procedures

A2 Desertion - absence from work for 5 consecutive days or more without a valid reason

A3 Intimidation

A4 Victimization

A5 Harassment

A6 Discrimination

A7 Nepotism

A8 Inciting, encouraging or persuading other employees to disobey lawful and reasonable instructions, to refuse to work, or to commence or resume work, or to disobey safety rules and procedures

A9 Inciting, encouraging or procuring any person to commit violence against any person or property

A10 Inciting, encouraging or procuring prejudice, discrimination or hatred against any person

A11 Assault, or attempted assault, with intent to do grievous bodily harm

A12 Fraud, bribery, theft, unauthorized possession of the employer property or that of a fellow employee or any property for which the employee is unable to give a satisfactory explanation, misappropriation of money, goods or property or pilfering, or any other offence relating to dishonesty

A13 Committing any criminal offence while on duty, or on the employer’s premises or in connection with the employer’s affairs

A14 Refusal to submit to a search in accordance with the employer’s policy on searches

A15 Falsification of any documents and or records

A16 Misrepresentation, or supplying false information in or knowingly omitting relevant information from his/her application for employment or when undergoing a medical examination

A17 Gross negligence; gross dereliction of duty and ineptness in execution of duties

A18 Possession of a dangerous weapon at the workplace

A19 Malicious damage to property

A20 Working for anybody else or engaging in any other business without prior approval of the employer

A21 Breach of any policy, rules, regulations, practices or directives of the employer

A22 Breach or non-compliance with the employer internal rules for compliance with the Financial Intelligence Centre Act, 2001

A23 Breach or non-compliance with the employer’s network and electronic communications policy leading to unauthorized access by a third party to the internal networks of the employer or


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resulting in damage or loss to the employer and/or intellectual property of the employer

A24 Unlawfully removing without approval or not in the ordinary course of business, intellectual property or confidential or commercial information of the employer.

A25 Revealing confidential information to any unauthorized person

CATEGORY B

B1 Indecent, improper, contemptuous conduct

B2 Failure to report loss or damage of the employer property or property for which the employer

is responsible

B3 Failure to report any injury or accident arising on the employer premises

B4 Other than in the normal course of the employee’s duties, or when legally obliged to do so

while giving evidence before a court of law, disclosing any information that could be

detrimental to the interests of the company

B5 Intoxication while on the employer’s premises or while driving or in charge of a vehicle of the

employer

B6 Possession and/or use of liquor or any other prohibited, intoxicating or habit-forming

substance or drugs on the employer’s premises while on duty

B7 Utilising the motor transport of the employer in an unauthorized, irregular or reckless fashion

or for purposes not associated with the conducting of the business of the employer

CATEGORY C

C1 Absent without leave for more than a day without a valid reason

C2 Reporting late for work or leaving the workplace early, and failure to adhere to the prescribed working hours and tea and lunch breaks

C3 Absence from the workplace, without permission of a supervisor/manager, during working hours

C4 Sleeping while on duty

C5 Exceeding defined limits of authority

C6 Failure to exercise proper management and supervisory functions

C7 Failure to wear prescribed uniform or protective clothing

C8 Abuse/misuse of telephone for private/personal purposes

C9 Loafing

C10 Insolence, rudeness and cheekiness

C11 Negligence

C12 Swearing and/or the use of foul, inappropriate or offensive language

C13 Poor work performance relating to the quality, quantity and/or standard of work


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C14 Swearing and/or the use of foul, abusive, abrasive, inappropriate or offensive language

C15 Smoking in a prohibited area or in any other way transgresses the provisions of the employer’s smoking policy

3.6. PRE-DISMISSAL ARBITRATION

Without prejudice to the general disciplinary procedures contained in this policy, The employer may

dispense with the disciplinary enquiry where a strong likelihood exist that the outcome of the enquiry

may result in the dismissal of an employee, and with the consent of the employee, the employer may

request the CCMA or a Council or Agency accredited in terms of the LRA to conduct a pre-dismissal

arbitration hearing in terms of section 188A of the LRA instead of holding a disciplinary enquiry.

The outcome of a pre-dismissal arbitration is final and binding on the parties and none of the parties

may appeal against a decision made at this arbitration save to file a review application with the Labour

Court on the grounds set out in section 145 of the LRA or as may be permissible in law.

4. INCAPACITY AND INEFFICIENCY

4.1. GENERAL

This policy applies to employees who have acquired the status of permanent employment. Incapacity

procedures for probationary employees refer must be dealt with in terms of the LRA or any applicable

policy of the employer in this regard.

The purpose of this procedure is to assist managers/supervisors to manage incapacity efficiently by

identifying the reasons for the incapacity so as to provide a structured system of assisting the

employee to improve on their performance in terms of standards set for them in their contracts of

employment and/or performance agreements.

Unlike misconduct the employees who performs their duties poorly as a result of inter alia their injury,

ill health, or lack of skill are not accountable for their actions and thus should be treated

sympathetically.

Poor work performance may arise out of a host of sources which affects the employee’s ability to

render satisfactory service, this may inter alia include:

Structural and technological changes

Illness or injury of an employee

Incompatibility etc.

4.2. POOR WORK PERFORMANCE


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4.2.1. General

An employee may not be dismissed for unsatisfactory performance unless the employer has followed

the procedure set out below:

(i) A performance standard must be set by the employer, and the employee must be informed of

such performance standard.

(ii) The employer must provide the employee with appropriate training, evaluation, instruction,

guidance and/or counseling and should inform the employee of the aspects of their poor work

performance and how such performance should be improved.

(iii) A reasonable time for improvement should be provided to the employee depending on the

nature and complexity of the job to be performed.

(iv) Where a reasonable time for improvement was provided and the employee continues to

perform below standard the employer must establish the reasons for the poor performance

through consultation with the employee.

(v) The employer must consider all other alternatives short of dismissal. Dismissal should be

regarded as the action of last resort.

(vi) If all has proved unsuccessful in improving the employee’s performance standard, an enquiry

should be held at which process the employee is entitled to be present and be duly

represented by a fellow employee or a trade union official from an employer-recognised trade

Union. This latter enquiry is not a disciplinary enquiry and thus the disciplinary procedures set

out in this policy may not be followed during this process.

The incapacity procedure should follow the following phases:

4.2.2. Phase 1 – investigation

The reasons for poor performance must be investigated. This serves to establish a gap between the

employees’ actual performance and the required performance.

4.2.3. Phase 2 - communication of performance standards

Once the gap is established the supervisor/manager will need to set up a meeting with the employee.

At this meeting the supervisor/manager must indicate to the employee what the difference is between

his/her actual performance and the required standards.


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The supervisor/manager shall establish the employee’s reasons for the substandard work from the

employee. Where the cause of the substandard work is a lack of training, the supervisor/manager

shall attempt to remedy this by offering the necessary training to capacitate the employee.

The supervisor/manager must arrange a further counseling meeting if the reason for poor work

performance is not related to lack of training.

4.2.4. Phase 3 - Holding a performance counseling meeting

The supervisor/manager must -

(i) advise the employee of the details established in respect of the poor performance;

(ii) advise the employee that the employer is unable to accept a performance below the set

standards;

(iii) ask inputs and suggestions from the employee;

(iv) advise the employee of the reasonable date by which his/her performance will be re-

assessed;

(v) set a date for the counseling follow-up meeting; and

(vi) record every communiqués in writing and send a copy thereof to the employee;

4.2.5. Phase 4 - Monitoring performance

Measure the performance output as determined at the counseling meeting. Do this as often as

possible and record performance levels.

The employee must be given feedback on performance each time performance is monitored in order

to establish a clear pattern of review and response on the part of the employer.

If performance has improved the employee should be informed of the improvements and be

encouraged to continue to demonstrate improvement. Conversely, where there is no demonstrated

improvement the employee should be informed of this.

4.2.6. Phase 5 - Holding an incapacity hearing

Although such a hearing is not a disciplinary hearing, the process followed is similar to the procedure

followed in respect of disciplinary action.

The employee must be notified of the date, time and venue for the hearing and is entitled to timeous

notice (48 hour notice) of the incapacity enquiry and is equally entitled to be represented by a fellow

employee or a trade union representative.


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During the incapacity enquiry, the employer will lead evidence on the alleged deficiencies in the

employee’s performance. The employee will have opportunity to answer to the allegations and lead

evidence that he/she is capable of performing according to the set standards, or alternatively that

he/she has so performed.

The employer must prove that:

(i) A performance standard was set.

(ii) The employee was aware of the performance standard or ought to have been reasonably

been aware of the performance standard set.

(iii) Where a period of improvement was granted, such time of improvement was reasonable

given the nature and the circumstances of the employee’s job description.

(iv) That the employee failed to meet the required performance standard.

(v) Dismissal is appropriate under the circumstances due to the failure to meet the required

performance standard.

4.3. ILL HEALTH OR INJURY

If it is alleged that an employee is not capable of performing his/her duties due to ill health or injury the

Office Manager/HR Department should appoint an investigator who has to investigate the nature and

extent of the incapacity and/or injury.

Where possible the reports of at least two medical practitioners must be obtained by the investigator

and attempts should be made to determine if the disability is of a temporary or permanent nature.

If the employee exercises his/her right to refuse to be examined the investigation must continue on

the basis of such information available to the investigator regarding the employee’s health.

If an employee is required to be absent for an unreasonable period of time under the circumstances,

the investigator must investigate all other alternatives prior to considering dismissal.

The investigator must investigate the possibility of accommodating the employee’s illness or disability

by means of allowing the employee to perform alternative services or adapting the duties or working

conditions of the employee.

When the investigator investigates alternatives to dismissal the following factors have to be taken into

account:

(i) the nature of the work;


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(ii) the period of absence;

(iii) the cause of the disability;

(iv) the nature, seriousness and extent of the illness or injury;

(v) if the employee is capable of performing his/her work and if so the extent to which the

employee is capable of performing the work;

(vi) the extent to which the employee’s working conditions and/or duties can be adapted to

accommodate the employee’s disability; and

(vii) the possibility of using temporary employees to perform the duties of the sick or injured

employee.

During the investigation as described above, the employee should be consulted and he/she should be

afforded an opportunity of being heard. The employee has the right to be assisted by an Employee

Representative in such consultations. Both parties may call medical experts to testify at such an

enquiry.

On the completion of the investigation, the investigator must provide the employer with a complete

report on the employee’s condition and possible alternatives of addressing the employee’s condition.

After the documentation has been considered, the employer must order that:

(i) the matter be referred back for implementation of such alternatives to dismissal as

determined by the employer; or

(ii) that the services of the person involved be terminated.

Termination can only be effected if the employee was duly notified of the enquiry at which he/she was

afforded the opportunity to be able to persuade The employer that he/she is capable of performing

his/her work. The employee should be encouraged to propose alternatives for consideration by the

employer.


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ANNEXURE A: NOTIFICATION OF DISCIPLINARY HEARING

IN THE MATTER BETWEEN:

THE [insert name of employer] (EMPLOYER)

AND

______________________________ (EMPLOYEE)

Following an investigation, you are hereby charged with the following act(s) of misconduct:

Details and nature of offence / transgression:

Charge 1:

_________________________________________________________________________________

_________________________________________________________________________________

Charge 2:

_________________________________________________________________________________

_________________________________________________________________________________

Charge 3:

_________________________________________________________________________________

_________________________________________________________________________________

The hearing will be held as follows:

Date: ______________________________

Time: ______________________________

Venue: ______________________________

______________________________ will chair the hearing.

You are reminded that you have the following rights:

to be represented/assisted by an employee of your choice from within the company or a trade

union representative from a The employer recognized trade union, however it is your

responsibility to arrange this.

to state your case/defend yourself.

to call witnesses and to cross-examine the initiators witnesses.

to inspect any exhibit presented by the employer.

to have an interpreter should you require so – should this be required please advice the Office

manager/Human Resources Department in order for us to arrange this.

Please note that should you fail to be present the hearing will be held in absentia.


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Yours sincerely

__________________________

INITIATOR

I acknowledge that I have received a copy of the notification and understand the contents thereof.

_____________________________ _________________________

Signed (Employee) Date

_____________________________ _________________________

Signed (Witness) Date


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ANNEXURE B: CHECKLIST FOR THE CHAIRPERSON OF A HEARING

Introduce all persons present – also briefly state functions of each person

Chairperson _______________________________________

Office/HR Manager _________________________________

Accused employee _________________________________

Representative (of accused) _____________________________

Prosecutor (line manager) _______________________________

Date of hearing________________________________________

Briefly state the purpose of the hearing and the sequence of proceedings.

The Chairperson must make it clear that he/she wants an orderly meeting, all questions must be channeled through the Chairperson and there must be no interjections by either party.

Charges laid against the accused:

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

Ensure that the accused understand the above charge. YES/NO

Ensure rights of accused have been complied with:

Was accused notified in writing of the charge/s against him/her? YES/NO

Does accused know he/she has the right to a representative YES/NO

Interpreter (if applicable) YES/NO

Was the accused given sufficient time to prepare for this hearing? YES/NO

Does the accused understand his/her rights YES/NO

If the accused refuses to plea, enter a plea of not guilty and request Supervisor to present the available facts YES/NO

Ask accused to plea.

Accused’s plea. YES/NO

Plea accepted by the chairperson YES/NO

If the accused enters a plea of guilty, the Chairperson must check that accused is aware of the impact of the plea on the proceedings. The Chairperson can change plea to not guilty if required.

Proceed with the hearing (if applicable call witnesses to prove/disprove case).


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Procedure if a witness is called in:

(i) Supervisor and accused (or representative) is allowed opportunity to make an opening statement.

(ii) Management witnesses are questioned by supervisor, then cross examined by accused (or representative).

(iii) The accused may call witnesses who are questioned by the accused (or representative), then cross examined by supervisor.

(iv) The supervisor and accused (or representative) make closing statements.

The Chairperson should not become to actively involved in questioning. He/she must be seen to be neutral but may ask questions in clarification.

The Chairperson, after hearing the closing arguments of both the supervisor and the accused, should ask the accused if he/she would like to change the original plea, based on the facts that were presented during the hearing.

The Chairperson should adjourn the hearing (duration of hearing is in his/her discretion) before communicating his/her verdict.

Inform the accused of the verdict. YES/NO

Ask for evidence in mitigation. YES/NO

Witnesses for mitigation may be called, questions and cross examination allowed if deemed necessary. The Chairperson must consider issues in mitigation and aggravation.

Employee history relevant to the case:

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

Before deciding upon appropriate action, it is advisable that the Chairperson adjourns the meeting briefly again, in order to apply his/her mind.

Inform the accused of the action decided upon YES/NO

Action decided upon _______________________________________________________________

________________________________________________________________________________

Accused handed appropriate written notice/warning YES/NO

Copy attached YES/NO

In case of dismissal, remember to issue:

Written dismissal form (for company records) YES/NO

Service certificate (required by law) YES/NO

An appeal form (and inform the employee of the right of appeal) YES/NO


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Signed as correct.

______________________ _________________

CHAIRPERSON DATE


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ANNEXURE C: WRITTEN WARNING

Date:___________________________________

Name of Employee: _______________________

Employee No.:___________________________

Department/unit: _________________________

A Written Warning is issued to you for the following unacceptable behaviour: ____________________

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

It is also expected of you not to make yourself guilty of such behaviour in the future as this will lead to further disciplinary action.

In the future you must ensure that you __________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

(future behaviour expected from the employee)

This warning is valid for ______ months and will remain on your personnel file.

Warning issued by:_____________________________________ on 20____.

__________________________________ ___________________ Chairperson Witness


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ANNEXURE D: APPEAL FORM

(To be completed in triplicate and handed to immediate Supervisor and Office Manager/HR

Department)

Name of Employee: ______________________

Employee No.:___________________________

Department/unit: _________________________

Date:___________________________________ Time: ___________________________

(Attach copies of relevant forms)

Nature of Appeal:

*Procedure incorrect

*Procedure unfair

*Insufficient evidence

*Insufficient investigation

*Finding incorrect

*Decision too severe

Please give detailed reasons for appeal:

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

_________________________ __________________ _____________________

Employee Employee Representative Employer

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

FOR OFFICE USE ONLY

Reported to: _____________________________________________________________

Comments: _____________________________________________________________

Decision: _____________________________________________________________


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ANNEXURE E: NOTICE OF APPEAL HEARING

Name of Employee: _______________________

Employee No.:___________________________

Department/unit: _________________________

Dear __________________________________,

You are hereby given notice that an appeal hearing will be held to hear the appeal lodged by you on

________________________ at ____________________________________. (date) (time)

Details of appeal:

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

Chairperson: ____________________________

Venue: _________________________________

Date: __________________________________

Time: __________________________________

You are reminded that you have the following rights:

to be represented/assisted by an employee of your choice from within the company or a trade

union representative from a The employer recognized trade union, however it is your

responsibility to arrange this.

to state your case/defend yourself.

to call witnesses and to cross-examine witnesses (where applicable).

to inspect any exhibit presented by the employer.

to have an interpreter should you require so – should this be required please advice the

Human Resources Department in order for us to arrange this.

Please note that should you fail to be present the hearing will be held in absentia.

Name of person issuing the notice: _______________

Date: __________________________ Time: ____________________________


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I acknowledge that I have received a copy of the notification and understand the contents thereof.

_____________________________ _________________________ Signed (Employee) Date

_____________________________ _________________________ Signed (Witness) Date


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ANNEXURE F: APPEAL HEARING CHECKLIST AND GUIDELINES

Date: _______________________________

Department/unit: ______________________

Step1

Open the hearing by stating the purpose of the hearing and confirming the rights of the employee.

Step 2

Introduce all the participants:

Chairperson: ___________________________

Complainant: ___________________________

Appellant: ______________________________

Representative: _________________________

Union official: ___________________________

Step 3

Was the appellant timeously notified of the hearing? YES/NO

Step 4

Ask the appellant/representative to confirm the grounds for appeal put forward YES/NO

Step 5

Read/confirm the minutes of the disciplinary hearing YES/NO

Step 6

Ask the appellant to motivate the grounds for appeal put forward YES/NO

Step 7

Evaluate and decide on procedural fairness of disciplinary hearing:

If defective, hear case in full

If not, proceed with appeal

Step 8

Ask the complainant to respond to the ground of the appeal put forward (presentation of evidence and

questioning of witnesses) YES/NO

Step 9

Ask the appellant/representative to present closing argument YES/NO

Step 10

Ask the complainant to present closing argument YES/NO

Step 11

Summarise the evidence led and test understanding YES/NO

Step 12

Adjourn to decide case. Indicate when the parties must reconvene YES/NO

Step 13

The chairperson reads his/her verdict YES/NO

Step 14

Chairperson issues outcome of appeal hearing form to employee YES/NO


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Step 15

Chairperson informs employee that he/she has a right to refer the dispute to the Commission for

Conciliation, Mediation and Arbitration within 30 days YES/NO

_______________________________ _______________

Chairperson Date


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ANNEXURE G: OUTCOME OF APPEAL HEARING

< example letter in case of failed appeal may be drafted differently depending on outcome >

Date: ___________________________

Dear ___________________________,

I refer to the appeal held on _______________________________________.

Having thoroughly investigated the charges against you and heard all evidence in the matter, I uphold

the decision of the previous chairperson and must inform you that your appeal has failed and that:

________________________________________________________________________________

_________________________________________________________________________________

The employer will contact you with regards to full details of monies owed to you and the settlement of

any outstanding debt.

Please note that you have the right to refer the matter to the Commission for Conciliation, Mediation

and Arbitration within 30 days of receipt of this letter.

Please by your signature indicate that you have read and understood the contents of this letter.

____________________________________

Chairperson

I acknowledge that I have received a copy of this letter and understand the contents thereof.

_____________________________ _________________________ Signed (Employee) Date

_____________________________ _________________________ Signed (Witness) Date

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