Who does what?
People are often confused by the title given to the participants at a disciplinary hearing. And the function of each person. Some participants at a disciplinary hearing may try everything in their power to frustrate the proceedings – even to the extent of introducing frivolous arguments and objections about irrelevant matters such as who is the Chairperson or Initiator? Who is the investigator? Who is the prosecutor?
The following people play a role in a disciplinary hearing:
Labour law does not specify who the Chairperson must be. They are the initiators of the employer, making the decision about guilt and sanction, and can be employed or appointed by the employer, depending on the disciplinary code of the employer. There are certain criteria the Chairperson must comply with such as being unbiased and independent.
The Chairperson may not be the same person who investigated the incident. The Chairperson should not be a person who could be fairly accused of being biased, or who could be fairly accused of not standing independent from the facts.
Some employers have a rule that the Chairperson must be a person of a higher rank than the accused employee. That is quite an in order as it falls within the attitude that discipline lies within the line of authority of the employer.
In today’s labour environment, the Chairperson should be a person who has been trained in the application of the correct procedures, who is competent in the consideration of the evidence on the balance of probabilities, and competent in the consideration of circumstances in considering a sanction.
The Chairperson should be thoroughly familiar with the employer’s own disciplinary procedures, and familiar with the employer’s rules and regulations and company policies. The Chairperson must be a strong and assertive person – they must not allow any disturbance and disruptions at the hearing and must rigidly and strongly control the proceedings.
Frivolous objections and applications must be firmly overruled, and the person who is trying to frustrate the proceedings must be firmly warned to behave themselves, otherwise, they might be ordered to leave the room.
In essence, the initiator is the employer, but somebody must represent the employer in this role. Therefore, if the accused employee's Initiator comes up with a question like “who is the Initiator?” you simply reply by saying “the Initiator is the name of the company, represented at the Disciplinary Hearing by the name of the company representative.” The best person to act as the initiator is the same person who was the investigator. This person has all the knowledge of the facts of the matter, collected all the evidence, investigated the facts, sorted the facts from the fiction and has put the evidence together, and is ready to present it.
Often the employer appoints the direct supervisor or the person who discovered the transgression as the Initiator, or where the employer is a member of a registered Employers’ Organisation, the representative of such organisation (like the EOHCB). Although this role is the most important at the disciplinary hearing, it is not necessary to complicate the hearing unnecessarily. Often the person who detected or discovered the transgression is the investigator and the Initiator in one. This happens often in the case of minor offenses.
However, the Initiator should never underestimate their role. An unprepared Initiator is sure to lose their case.
Obviously, the function of the interpreter is to do exactly that – to interpret. Care must be taken that the interpreter interprets exactly what the person has said and not what the interpreter thinks the person should have said. Employers should take cases to ensure that the interpreter is well-conversed in the language they are interpreting.
Witnesses are those people, employed or not, who can personally witness some facts that are necessary to prove or disprove the allegation against the accused employee. They must wait outside the room until they are called to give evidence.
The accused employee is the accused employee in the case against them and is therefore not a witness. Due to the rule that one must be able to confront one's accusers, the accused must be present at all times during the hearing.
After giving evidence, and after cross-examination and re-examination is complete, the witness must be warned not to discuss their evidence with any person outside the room, and that if they do so, they could be charged with gross insubordination which would lead to disciplinary action, which in turn might lead to dismissal.
This role is not always filled. If the proceedings are not being recorded, a secretary should be present to take down the minutes. This is normally done by the HR practitioner. However, the best way is to use a digital voice recorder.
The accused employee
The accused employee is the accused employee, and obviously, they are there to respond to the charges against them. The accused employee may be accompanied by an Initiator from their place of work or a union Initiator.
The accused employee’s representative
The accused employee’s Initiator is there to assist the accused employee in preparing and presenting their defense, at a Disciplinary Hearing, to speak on behalf of the accused employee, to assist with cross-examination, presentation of evidence, and so on. The accused employee’s Initiator may be a fellow employee or a colleague from their place of work or a union Initiator.
The appointment of the investigator
If the investigator and the initiator are not the same people, the person appointed to be the investigator must also be advised that they will be the Initiator’s witness at the Disciplinary Hearing, and they will be required to present the evidence on their investigation for the Initiator at the disciplinary hearing.
Care should be given not to present the investigator’s evidence as opinion evidence unless the intention is to call the investigator an expert witness.
If not, the investigator must testify on the procedure followed and the evidence collected but leave it to the chairperson to make a finding on the evidence. If it is the same person who will act as Initiator, then they must present the evidence as investigated.
The investigator must be a person who is able to leave their normal duties for a period of time, or at least leave their duties for intermitted periods of time – such as two hours in the morning, two hours in the afternoon, or something like that. The employer must regard this as part of the duties of the investigator.
The investigator’s superiors must be informed that they have been appointed to investigate an incident of misconduct, and line management must make arrangements to facilitate the appointed investigator to have time off from their normal duties to attend to the investigation. For the investigator’s superior to tell them “just investigate this and get a move on” is unacceptable. An attitude like that will land the employer in hot water because the matter will be poorly investigated and sloppily prepared, and the employer will lose the case.
The worst result of presenting a poorly investigated case, which the employer loses before it even starts, is the fact that in the eyes of the employees and in the eyes of the trade union, the employer comes across as being totally incompetent, thoroughly ignorant, and an employer who does not know what they are doing. In short, the employer becomes the laughingstock of the employees and the union.
Therefore, the appointed investigator must be allowed to get on with the job that they were appointed to do – namely to properly investigate the incident of misconduct.
The investigator must be provided with the necessary resources:
Computer facilities, or a person who can do the typing for them;
Access to a camera, and a digital voice recorder so that they can have recordings of their findings for typing at a later stage;
A private office where they can interview witnesses or suspects, and take down statements; and
Time off work, to interview other people such as clients, suppliers, or SAPS.