1|Pa g e

GUIDE TO GUIDE ON HOW TO CONDUCT A DISCIPLINARY HEARING:

BY

MAKILETSE KEVIN MMOLA

Edition 1
2|Pa g e

Table of Contents
INTRODUCTION ..................................................................................................................................... 3
RULES ..................................................................................................................................................... 7
PREPARATION FOR A DISCIPLINARY HEARING.............................................................................. 14
DURING HEARING............................................................................................................................... 16
POST-HEARING.................................................................................................................................... 19
3|Pa g e

INTRODUCTION

DISCIPLINARY HEARING AT THE WORKPLACE

Disciplinary hearing is a vital process that employers must undertake to investigate

allegations of misconduct against an employee. These hearings play a crucial role in

maintaining organizational integrity and productivity by addressing issues of

misconduct in a structured and fair manner.

The main objective of a disciplinary code and procedure is to regulate the standards

of conduct within a company or organization. By establishing clear guidelines, these

codes aim to correct unacceptable behaviour and ensure consistency and certainty in

the application of discipline. Fair disciplinary procedures are essential for maintaining

trust and respect in the workplace.

Disciplinary procedures can also be part of a collective agreement, embedding these

processes within the organizational framework. This inclusion ensures that all parties,

including unions and employees, are aware of and agree to the standards and

procedures governing workplace conduct.

It is important to distinguish between disciplinary action and counselling. Counselling

is appropriate when an employee is not meeting performance standards or is unaware

of a conduct rule, and for minor breaches that can be easily corrected. The goal of

counselling is to guide the employee towards improvement without formal punitive

measures.
4|Pa g e

Conversely, disciplinary action is required when a rule breach cannot be condoned or

when counseling has not achieved the desired outcome. Disciplinary actions are more

formal and may involve warnings, suspensions, or even termination of employment.

REQUIREMENTS AND AIMS

Before deciding on a disciplinary measure, management must meet with the employee

to explain the alleged rule breach. This meeting is crucial as it provides the employee

with an opportunity to respond and explain their conduct, ensuring transparency and

consideration of the employee's perspective.

A workplace disciplinary code is essential for promoting fairness and consistency. It

offers a clear framework for addressing misconduct and helps prevent arbitrary or

biased decisions. An effective disciplinary procedure fosters a culture of accountability

and respect, where employees understand the consequences of their actions and the

importance of adhering to organizational standards.

This guide aims to provide employers with a step-by-step approach to conducting

disciplinary hearings effectively and fairly. By following this guide, employers can

ensure that disciplinary processes comply with legal standards and contribute to a

positive and productive work environment. Through comprehensive explanations and

practical advice, this book will equip managers, HR professionals, and employees with

the knowledge and tools necessary to navigate and implement effective disciplinary

processes in the workplace.

Thus, disciplinary hearings are a vital component of workplace management. They

help maintain order, protect employee rights, and ensure that the workplace remains
5|Pa g e

fair and productive. By understanding and applying the principles outlined in this guide,

organizations can better manage conduct and performance issues, ultimately leading

to a more harmonious and efficient workplace.

TYPES OF DISCIPLINE

Different levels of disciplinary action may be necessary depending on the seriousness

of the misconduct and whether the employee has violated the specific rule before. 1

The following disciplinary measures can be utilized (listed in increasing severity):

1. Informal verbal reprimand

2. Formal written warning

3. Final written warning

4. Suspension without pay (for a defined period)

5. Demotion, as an alternative to termination under certain circumstances

6. Termination of employment

Employers should evaluate the seriousness of the offense based on the disciplinary

rules in place. For less severe violations, informal actions like verbal or written

warnings may be appropriate.

There are no set legal requirements regarding the number of warnings an employee

should receive, and termination could be considered for a first offense in cases of

serious misconduct such as dishonesty, assault, or insubordination.

1
Progressive discipline entails that if an employee commits the same or similar offense subsequent to
receiving a disciplinary sanction, they should face a higher level of disciplinary action.
6|Pa g e

However, for less serious infractions, employers are advised to implement a

progressive disciplinary approach rather than resorting to termination immediately.

As per company policy, written warnings typically remain valid for 3 to 6 months, while

final written warnings are effective for 12 months.

It's important to note that a warning issued for one type of violation should not be

applied to another offense. For example, receiving a first written warning for lateness

should not result in a subsequent written warning for insubordination.

PARTIES PRESENT IN A HEARING

A disciplinary hearing typically comprises the following components2:

1. The chairperson, who presides over the tribunal and oversees the disciplinary

hearing proceedings.

2. The accused individual, who is the subject of the disciplinary hearing and is

alleged to have violated the company's rules or policies.

3. The representative of the accused, which may include a shop steward, union

representative, or legal counsel, providing support and advocacy for the

accused during the hearing.

4. On the employer's side, there is the initiator or prosecutor, who represents the

employer's interests and is responsible for presenting evidence to establish the

alleged misconduct before the tribunal.

2
In a disciplinary hearing, having a lawyer represent you isn't an automatic right. You usually need to ask
for permission beforehand. This request can be approved or denied by the person in charge of the
hearing.
7|Pa g e

RULES

For both the initiator and the accused, effective presentation of their cases before the

Chairperson is crucial.

Here are some rules applicable to both parties, along with examples3: (EVIDENCE IN

CHIEF)

1. Paint a Clear Picture with Evidence:

Rule: Ensure that your case paints a clear picture of the organization's structure

to aid the Chairperson's understanding.

Example: If you're the initiator, when presenting evidence of misconduct,

provide context about the organization's policies and procedures, illustrating

how the alleged actions violated company rules. For instance, if the employee

breached confidentiality, explain the specific policies violated and the potential

impact on the organization.

As the accused, your goal is to demonstrate your innocence by providing

reasons why the allegations are not true or if there was any influence from upper

management that led to the misconduct. You need to present evidence or

3
By adhering to these rules and examples, both the initiator and the accused can effectively present their
cases, ensuring a fair and just disciplinary hearing process.
8|Pa g e

arguments showing that you did not commit the alleged misconduct or that

external factors influenced your actions.

2. Ensure Quality Witness Evidence:

Rule: During examination-in-chief, ensure your witnesses provide clear

evidence without rushing and face the Chairperson when answering questions.

Example: If you're the initiator, when presenting your witness, ensure they

speak clearly and provide relevant details. For example, if the witness observed

the incident, they should describe what they saw without being influenced by

leading questions.

3. Use Simple and Clear Questioning:

Rule: Phrase questions using simple language and avoid leading questions to

elicit accurate and relevant information.

Example: If you're the initiator/ accused, when questioning a witness, ask

open-ended questions to allow them to freely provide their account. For

instance, "Can you describe what you observed on the day of the incident?"

instead of "Was the employee clearly in violation of the company's policy?"

Here are key strategies for effective cross-examination tailored to disciplinary

hearings4: (CROSS-EXAMINATION)

4. Establish Clear Goals for Each Witness:

4
By applying these rules and examples, both the initiator and the accused can conduct effective cross-
examinations during disciplinary hearings, ensuring a fair and just process.
G|Pa ge

Rule: Determine whether cross-examining a witness will benefit your case.

Example: If you're the accused, consider whether questioning a witness will

strengthen your case against the employer. For instance, if the witness has

crucial information regarding the alleged misconduct, cross-examination may

be beneficial.

Rule: Set specific goals such as confirming important facts or damaging the

witness's credibility.

Example: If you're the accused, your goal might be to undermine the credibility

of a witness who is testifying against you. You may aim to establish

inconsistencies in their testimony to cast doubt on their reliability.

5. Structure Questions to Control Witnesses:

Rule: Craft questions as leading questions to guide witnesses' responses.

Example: When cross-examining, you might ask, "The incident occurred at

3:00 PM, correct?" This guides the witness to confirm a specific detail without

room for interpretation.

Rule: Focus on one fact per question and keep questions succinct to avoid

evasion.

Example: Instead of asking broad questions, break down the inquiry into

specific points. For instance, "Did you witness the accused entering the

restricted area at 13:00 PM?"

6. Strategically Use Constructive & Deconstructive Cross-Examination:

Rule: Constructively cross-examine to draw out helpful testimony from adverse

witnesses.

Example: If you're the accused, you might use constructive cross-examination

to extract information favourable to your case from a witness who initially seems

adverse. For instance, you could ask questions that highlight mitigating

circumstances surrounding the alleged misconduct.

Rule: Deconstructively cross-examine to challenge witnesses and damage

their credibility.

Example: As the initiator, you may use deconstructive cross-examination to

expose inconsistencies in the witness's testimony or to challenge their version

of events.

7. Know Witnesses' Prior Testimony Thoroughly:

Rule: Familiarize yourself with witnesses' prior testimony and relevant

evidence.

Example: If you're the initiator, review the witness's prior statements to identify

contradictions or weaknesses in their testimony that can be exploited during

cross-examination.

Rule: Pin down witnesses by referring to their prior testimony when their

answers conflict.

Example: If the witness contradicts their previous statement, you might

confront them by saying, "In your deposition, you mentioned something

different. Can you explain the inconsistency?"

8. Maintain Composure with Uncooperative Witnesses:

Rule: Stay calm and professional when faced with uncooperative witnesses.

Example: If a witness becomes argumentative, maintain your composure and

avoid escalating the situation. Stay focused on redirecting the witness back to

the question at hand.

Rule: Politely redirect evasive answers and remind witnesses to answer

directly.

Example: If a witness avoids answering, you might say, "I understand, but

could you please answer the question directly?"

(RE-EXAMINATION)

Re-examination is the final phase of questioning a witness during a hearing, occurring

after their cross-examination.

It allows the party who initially called the witness to ask additional questions, but only

concerning matters that arose during the cross-examination.

After your own witness has undergone cross-examination, you have the procedural

right to conduct re-examination.

9. Re-examination serves the following purposes:

1. If your case suffered damage during cross-examination, re-examination

allows you to rectify that damage.

2. If your witness's credibility was tarnished during cross-examination, re-

examination gives you the chance to restore their credibility.

3. If there was any confusion created in your evidence during cross-

examination, re-examination provides an opportunity to clarify.

4. If new evidence emerged during cross-examination, re-examination allows

you to address it.

However, if none of the above purposes are served, there may be no need for

re-examination at all. The primary reason for undertaking re-examination is

mainly for the outlined purposes.

10. Deciding to Re-examine

Your decision to conduct re-examination depends on several principles and

tactical considerations:

a) Only re-examine if cross-examination has harmed your case or witness.

b) If efforts to repair the damage seem unlikely to succeed, there may be no

need to re-examine.

c) If unsure whether re-examination will benefit your case, it may be better to

refrain from it.

d) Keep re-examination brief and straightforward.

(CLOSING ARGUMENT)
In disciplinary hearings, both the initiator and the accused should mutually agree on

how they wish to present their closing arguments, whether in written form or delivered

verbally.

An effective closing argument should clearly summarize the key facts supporting your

case while highlighting those that weaken the opposing side. A persuasive closing

will organize the established facts in a way that guides the presiding officer toward a
13 | P a g e

favorable decision.

11. Key elements of a strong closing argument include:

1. Identification of the issues to be decided

2. Evaluation of witness testimony and presented evidence

3. Rebuttal of the opponent’s evidence

4. Application of relevant legal principles to the facts

Delivering a compelling closing argument is a skill that requires mastering its art. In a

hearing, it serves to summarize the discussions and deliver a decisive conclusion

aimed at influencing the presiding officer's decision. I often describe it as functioning

like a GPS, strategically guiding the presiding officer toward the desired outcome

when making their findings.

(AFTERMATH OF HEARING)
The outcome of a disciplinary hearing largely depends on the presiding officer’s

approach. Some presiding officers may require closing arguments to incorporate

aggravating and mitigating factors, while others may only call for these submissions

after delivering the sanction. I often refer to this stage as the "last bite of the apple,"

similar to the story of “Snow White and the Seven Dwarfs”. At this point, the outcome

can either favor or go against a party, often influenced by emotions and external

factors that may fall outside the strict boundaries of the law.

12. It’s crucial to understand the two key components at this stage:

• Aggravating Factors: These may include intentional misconduct, lack of

remorse, the impact of the misconduct on the employer, loss of trust, and any

previous disciplinary warnings.

• Mitigating Factors: These might involve showing remorse, confessing to the

misconduct, the absence of harm or loss, provocation, or having a clean

disciplinary record.

These components should never be underestimated, as they strongly appeal to the

emotional aspect of the proceedings more so than other stages of the disciplinary

hearing.

(RULINGS)
In most cases, the Chairperson of a tribunal controls how the hearing is conducted,

wielding powers similar to those of a presiding officer in a court. It is important to note

that while a company's policy serves as a guide for identifying misconduct, it is not the

law itself but rather a framework that informs the cause of action.

13. Here are some but not limited key rulings they might issue during the
hearing:

• Ex tempore: This Latin term means 'at the time'. A judge who delivers a

decision immediately or soon after the hearing is providing an ex tempore

decision. Alternatively, a judge may reserve their decision and deliver it later

in written form.

• De novo: This means starting afresh. The hearing can begin anew for

various reasons.

• Sine die: (with reference to business or proceedings that have been

adjourned) with no appointed date for resumption

• Postponed to an agreed date: The hearing is rescheduled to a date that is

agreeable to all parties involved.

• Set down: The matter is scheduled to resume after a short break.

• Roll over: The hearing will continue the next day from where it left off.
16 | P a g e

PREPARATION FOR A DISCIPLINARY HEARING

There are numerous ways to prepare for a disciplinary hearing, and understanding the

mechanisms used to prove your case can significantly enhance your preparation and

persuasive ability before a tribunal.

Here are some key tips for effective preparation for a disciplinary hearing, both for the

initiator/accused and the Chairperson:

For the Initiator/Accused:

1. Gather and Organize Evidence: Collect all evidence relevant to the allegation,

considering various types of evidence and their weight. Understand what

evidence is admissible and what is not.

2. Prepare a Bundle: Once evidence is gathered, compile it into a structured

bundle with proper indexing and pagination. This will help the Chairperson

follow the evidence presented during the hearing.

3. Prepare Witness: Prepare witnesses who will testify to support your case. This

preparation helps you navigate the evidence bundle and enhances the

credibility of your evidence

For the Chairperson:

1. Utilize Note-Taking Tools: Ensure you have notepads for drafting notes and a

recording device to capture important evidence and submissions that may be

missed during the hearing.

2. Company’s policies: Fully familiarize yourself with the company's policies

regarding conduct and disciplinary procedures.

3. Familiarize Yourself with Evidence Law: Understand the principles of

evidence law to control the admissibility of evidence effectively.

4. Understand Examination Procedures: Know how to conduct examinations-

in-chief, cross-examinations, and re-examinations.

5. Recognize Mitigating and Aggravating Factors: Understand how mitigating

and aggravating factors are presented through oral submissions during the

hearing.

6. Be Familiar with Closing Arguments: Understand the process of presenting

closing arguments effectively.

7. Know Disciplinary Hearing Rulings: Understand the rulings and procedures

governing disciplinary hearings to ensure smooth proceedings.

These tips aim to ensure thorough preparation and understanding of the disciplinary

hearing process, enhancing the effectiveness of both presenting and adjudicating

cases before the tribunal.

DURING HEARING
Day 1: Opening the Hearing and Preliminary Steps.5

1. Begin the hearing and introduce yourself (if necessary) as Chairperson.

2. Confirm the presence of the employee.

3. Have all parties sign an attendance register and introduce them if needed.

4. Inform parties if proceedings will be recorded and grant the employee

permission to record if requested.

5. If the employee is absent, determine the reason and decide whether to

postpone or proceed in their absence.

6. If the employee is present, proceed as follows:

• Check if the employee has or needs a representative.

• Check if the employee requires an interpreter or a fellow employee fluent

in the necessary languages.

• Confirm that the employee received the notice of the hearing.

• Ensure the employee understands the allegations.

5
Must be done on record.
19 | P a g e

• Verify that the employee had sufficient time to prepare.

7. Briefly explain the procedure for the hearing:

• Read the allegations and ask the employee to separately state whether

or not they committed the misconduct as alleged.

• If the employee admits to the misconduct, request background

information from both parties and proceed to the next phase.

• If the employee denies the misconduct, then proceed with the

disciplinary hearing.

After check list has been done, ask the accused if they plead guilty or not. If the

accused pleads not guilty, request the initiator to begin presenting their case. When

the initiator's witness is ready for evidence-in-chief, swear in the witness to place them

under oath. For example: "Please raise your right hand, Mr./Ms. (Witness Name). Do

you swear that the evidence you shall give in this disciplinary hearing shall be the truth,

the whole truth, and nothing but the truth?"

Once the witness has been sworn in, they may proceed with their testimony before the

tribunal.

Day 2: Presenting Evidence and Examination

8. The employer presents the evidence through its witnesses.

9. Cross-examination of each witness by the employee or their representative.

10. Re-examination of each witness by the employer.

Day 3: Employee's Defense and Examination

11. Employees present their evidence and witnesses (if any).

12. Cross-examination of the employee's witnesses by the employer's

representative.

13. Re-examination of the employee's witnesses by the employee or their

representative.

Day 4: Closing Arguments

14. Delivery of closing arguments from both parties.

Note that the duration of a disciplinary hearing depends on the person

conducting it, the number of witnesses, the evidence presented to the tribunal,

and the parties involved. The following outline serves as a general guide to

illustrate how a disciplinary hearing can be structured.

POST-HEARING
The parties then proceed to submit their mitigating and aggravating factors. This final

documentation aims to persuade the presiding officer regarding their case, ensuring

the officer can weigh all submissions presented.

Here are the general guidelines to assist the Chairperson in determining a ruling6:

1. Labour Relations Act 66 of 1995

2. Code of Good Practice

3. Promotion of Administrative Justice Act, 2000

4. Basic Conditions of Employment Act 75 of 1997

5. The Constitution of South Africa

6. Recent case law (preferably Labour Court or Labour Appeal Court)

After considering these guidelines, the Chairperson will issue a ruling 14 days after

the conclusion of the hearing.

CAUTION:

6
Not limited
20 | P a g e

Ensure all documentation related to the enquiry is securely stored in case the outcome

is challenged. This includes the notice of the enquiry, documentary evidence,

Chairperson’s notes, minutes of the enquiry, outcome of the enquiry, and any appeal

documentation.

IF THE ACCUSED IS NOT SATISFIED:

They may approach the CCMA or Bargaining Council. If still dissatisfied, they can

escalate the matter to the Labour Court and, if necessary, to the Labour Appeal Court.