Prior to a disciplinary hearing – at least two days before the hearing – you must have all your preparation completed. You must have all your documentary evidence, charges, and company documents in a proper bundle so that you can lead your evidence in chronological order and call your witnesses in chronological order. Have your note on the evidence you want to lead ready. You do not wish to waste time by having to shuffle through papers to look for your notes.
Look at your evidence, and say to yourself “if I was the opposing party, what questions would I ask in cross-examination based on the evidence that I will give?” Try and guess what questions the other side will ask all your witnesses in cross-examination and prepare the witnesses for those questions. This does not mean that you should tell your witnesses what to testify, but rather how to testify. Make sure your witnesses are available and know when and where to come during the hearing. Clear up any last-minute questions with the witnesses.
Provide a copy of your bundle of evidence to the accused employee or their Initiator and ask for their bundle. Read through your bundle again and make sure that you have included it in the questions to the witnesses – remember, the document cannot prove itself. If the content is not admitted, you must prove it with evidence.
Make sure that you have all the evidence ready to prove your case. Make a list of it and keep it nearby. Get information about the record of the employee.
Prepare your opening statement and the framework for your closing statement. Get last-minute advice if you are not sure about some elements of the charges. Prepare to aggravate circumstances if the employee is found guilty. Call the employee or their Initiator and find out if they plan on bringing any applications so that you can be prepared for it. Ask the employee if they are prepared to make any admissions or admit documents.
Do’s and don’ts for initiators:
Initiators should always take the following into consideration –
Always be prepared;
Always prepare your witnesses before you call them to testify. This does not mean to tell them what to testify, but rather how to testify and alert them to what part of their evidence you are concentrating on;
Strategise your case;
Test evidence against the evidential burden – make sure you know what evidence to present to prove your case;
Prepare your opening and closing statements;
Prepare your cross-examination;
Prepare your bundle of evidence and supply it timeously to the other party;
If you have statements for the witnesses, give it to them to refresh their memory;
Do not supply evidence in a piecemeal fashion, it frustrates the other party and leads to either unfair conduct because the other party does not have time to prepare or to postponements;
Do not confer with the Chairperson on the facts of the case;
Soundboard with colleagues with experience if you are unsure;
Do not put words in witnesses’ mouths and do not mislead witnesses with statements;
Do not misbehave, lose your temper or become personal with the witnesses or the other party.
Must the police be involved?
Workplace crime – must employers leave it to the police? Disciplinary offenses in the workplace may amount to crimes. When they do, should the employer leave the matter to the police, or take disciplinary action – or both? The first decision the employer should take is whether to proceed with disciplinary action whilst the criminal action is still pending.
The decision will not be difficult if the accused employee agrees to participate in a disciplinary inquiry, but how should the company react if the employee pleads, as they have a right to do, that they wish to remain silent during the disciplinary proceedings because their evidence could be used against them in the criminal trial? Several employees have raised the “right to silence” in attempts to postpone internal disciplinary proceedings until the conclusion of criminal proceedings for the same misconduct. They have not generally succeeded. Foreign courts have gone so far as to suggest that, because of the potential clash between enforced participation in disciplinary proceedings and an accused’s rights in pending criminal proceedings, employers can dismiss employees in such circumstances without hearings.
This approach is in conflict with two fundamental principles of South African labour law. The first is that employers cannot dismiss employees on the basis of unproven allegations; the second is that employers are required to dismiss employees in accordance with a fair procedure. The only options for employers are therefore either to delay disciplinary proceedings until the conclusion of the criminal trial or proceed with the disciplinary hearing and allow the employee to decide whether or not to participate.
South African Courts and labour tribunals have supported the latter alternative. According to the Industrial Court, an employer is obligated to hold a disciplinary inquiry. An employer would normally, on suspicion of theft, suspend the employee on full pay until such time as the inquiry can be held. Whether the employer holds the inquiry before a criminal charge has been dealt with by the ordinary courts, or subsequent to the court’s decision on a charge of theft, is a decision that every employer must take according to the facts of each particular case. It begs a number of questions. Which circumstance obliges an employer to delay a disciplinary hearing inquiry until a criminal court has made its finding? What kind of inquiry is required if the employee is convicted by the criminal court? And, finally, can the employer proceed with disciplinary action if the employee is acquitted of the criminal charge?
One situation that may give employers pause is when the employee seeks to rely on the sub judice principle, which prohibits action that may reasonably anticipate or affect the outcome of judicial proceedings. A finding by an employer that an employee has in fact committed the misconduct for which they have been charged clearly anticipates the decision the criminal court is required to make. Evidence gathered for purposes of the disciplinary inquiry, and the testimony of witnesses may also be used in criminal proceedings against the employee. The possibility of such a conflict can be raised in which an employee sought an interdict restraining their employer from proceeding with a disciplinary inquiry which would compromise the employee’s right to remain silent at the criminal trial. The right to be presumed innocent and to remain silent precludes an accused person from being compelled to participate in civil or internal disciplinary proceedings. However, by an employer inviting a witness to give evidence in the defense of an accused employee, the employer does not force the employee to give evidence. On the contrary, the preservation of the employee’s rights lies entirely in their own hands, and there is no such element of compulsion. What the employee in an interdict seeks, is to be protected against the consequences of the choices they are being called upon to make.
It is found that an employee’s submission suggested that if the alternative which is to be chosen is equally unattractive, then the choice is tantamount to compulsion and that the right to silence entitles an accused person not to be faced with that choice. This is not correct according to the courts as the accused person may well be required to choose between incriminating themselves or losing their employment. If the employee loses their employment that is a consequence of the choice they have made but no penalty for doing so. It will be the natural consequence of being found guilty of misconduct, not a punishment for inducing them to speak. Therefore, an employee’s right to silence would not be violated if the hearing continues. There are a number of other reasons why employers should not be required to postpone disciplinary hearings in cases when employees seek to rely on their right to remain silent – A criminal court seeks to protect society against wrongdoers; but in the case of an employment relationship, the employer aims to protect their business interests, and for that reason, they are entitled to take a different view of the employee’s conduct from that adopted by a judge or magistrate.
Internal disciplinary proceedings and criminal proceedings are independent processes, even if they concern the same misconduct, While the objects of the factual inquiry may be the same – i.e., to determine whether the person was guilty of an offense – the considerations underlying sentencing differ. A criminal court may consider a suspended sentence or a fine sufficient; an employer may reasonably conclude that the ultimate penalty of dismissal is the only option. More pertinently, however, the criminal courts require a standard of proof far more rigorous than that expected of employers.
Failure by the State to prove that a person is guilty of, say theft, beyond a reasonable doubt, does not mean that the same person cannot be found guilty according to the civil test – i.e., the balance of probabilities. Most criminal offenses must be committed intentionally; workplace misconduct can be committed negligently. So, for example, a security guard who slips off for a smoke and thus unknowingly affords an employee an opportunity to steal goods will not be guilty of theft; but they will certainly be responsible for causing the employer loss. Perhaps more pertinent of all, however, is the fact that were employers forced to postpone disciplinary hearings until the conclusion of related criminal proceedings, they would be faced with the invidious choice of either keeping the employee in services or suspending the employee indefinitely on full pay, which according to the Labour Court, employers are not permitted to do.
When employees do not request the postponement of disciplinary proceedings, the courts have made it plain that employers have no right to do so unilaterally. The court holds that an employer could institute disciplinary action when it is in possession of the police report and that there is no need to suspend an employee indefinitely pending a criminal trial. The Industrial Court rejects the patronising attempts of employers to rely on concurrent criminal proceedings to justify a delay in following disciplinary proceedings. An employer has no right to decide on behalf of an employee; by claiming the postponement of disciplinary proceedings in order to avoid prejudicing the misconducted employee as a defense to the criminal charge. If disciplinary inquiries are to be postponed for this reason (prejudice), it must be at the employee’s request.
In cases in which an accused employee does not request a postponement of a disciplinary hearing, employers have no right to delay taking disciplinary action merely because a criminal action is pending in relation to the same misconduct. The position is no different if the State withdraws criminal charges against an employee before the employer institutes disciplinary action. The onus of proof required in criminal trials differs from that required in disciplinary hearings. Furthermore, it is accepted that a conviction by a criminal court is not admissible in subsequent civil proceedings arising from the same incident. The reverse also applies. It follows, therefore, that an employee cannot rely on a previous acquitted by a criminal court either to restrain the employer from instituting disciplinary action or to dispute an earlier disciplinary inquiry that resulted in a finding of guilty.
There is no conclusive authority provided for the proposition that an employer cannot in any circumstance reply on the contents of relevant criminal proceedings when it takes action against employees for the same offense. Where a trial has run its full course and resulted in a conviction, there seems to be no reason why an employer cannot rely on the court’s verdict in subsequent disciplinary proceedings, at least as prima facie proof that the employee committed the offense.
An employer cannot rely on the mere fact of a conviction by a criminal court to justify a finding that an employee is guilty of infringement of its disciplinary code. One of the reasons for disallowing such summary proceedings is that magistrates are sometimes wrong. The employer should, therefore, produce the record of the criminal trial before the disciplinary hearing. The presiding officer could then read the record, giving the employee an opportunity to state their case, and then decide on the basis of what they had heard and read whether the employee is guilty of the misconduct. It is for the presiding officers to decide whether further evidence should be led.
The employee has the right to plead in relation to the penalty that the employer might impose, it does not follow the conviction by a criminal court for an offense that leads automatically to the conclusion that termination of employment is appropriate and fair. The employee should at least be afforded the opportunity of arguing that it is not. This assumes, however, that the employee is free to attend the disciplinary hearing after conviction. If the employee has been imprisoned, the employer cannot reasonably be expected to afford the employee that opportunity. However, even then, it would seem that the employer should at least consider whether dismissal is called for.
Remember that theft is generally a dismissible offense. However, it does not follow that all offenses that amount to “crimes” – even theft – warrant dismissal. It is not always the conduct of theft but the devious nature thereof which irreparably destroys the confidence that an employer has in an employee. Not all acts for which the State can prosecute people necessarily entail devious and morally reprehensible conduct, particularly breaches of the many statutory offenses which may ensnare citizens. Those disciplinary codes which provide for dismissal for the commission of a criminal offense should not, therefore, be taken literally.
Another basis for distinguishing between disciplinary and criminal proceedings lies in the trite principle that employers only have disciplinary powers over their employees in respect of work-related conduct. This means that if an employee commits a criminal offense in their own time outside the workplace, the employer will have to be satisfied that the effect of the employee’s conduct impacts the employment relationship. The line between work-related conduct and conduct which is not work-related may be blurred. An assault committed by a worker during a lover’s tiff maybe none of the employer’s business. However, if the victim happens to be a colleague of the assailant or a friend of a colleague, the assault may have a drastic effect on interpersonal relationships on the shop floor. Or, to take another example, if the assailant was the company’s public relations director and the assault took place during a public function, the image of the company might well have suffered.
Unless an employer can prove that there is some nexus between the commission of a criminal offense by an employee and the legitimate interests of the employer, dismissal for that misconduct will not generally be justified.
In the situation when an employer discovers that an employee was guilty of a criminal offense before they commenced employment with that employer, the employee can shelter behind the absence of a duty to disclose prejudicial information to another, except in special circumstances. The courts will only uphold dismissal for prior criminal convictions in exceptional circumstances, and only when the employee is deemed to have been under a duty to disclose past convictions, either because good faith demanded disclosure, or because the employer had specifically asked. But even then, past misconduct will not necessarily justify dismissal, unless the employer can prove that its interests are affected.
Where an employee is appointed pending the outcome of criminal proceedings, an employer can include a clause in the employment contract that states that the employee can be dismissed should the employee be convicted of the pending charges. Employers who discover that a prospective employee has been convicted of a crime before they begin work are in a safer position as “employees” cannot be dismissed by their future employers until they actually begin work.