Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
Problems of weak disciplinary case presentation often occur. There are two important reasons for this. The person presenting the case for the employer may be insufficiently skilled in case presentation, or, the employer may have failed to prepare the evidence properly.
However, where the manager responsible for bringing the case on behalf of the employer fails to do so properly the likelihood is that the CCMA arbitrator’s decision will go against the employer. This is because the employer has the full onus of proving that the employee was guilty and that the misconduct merited dismissalas opposed to less drastic and more corrective disciplinary step.
The steps for preparing a case include:
- Assessing the allegations to establish whether they have been brought in good faith or whether the accuser has a hidden agenda
- Investigating the circumstances of the alleged incident(s)
- Assessing the circumstances leading up to and surrounding the alleged incidents of misconduct
- Evaluating the evidence gathered in the investigation to establish whether it constitutes proof or not
- Formulating the charges to be brought against the accused at the disciplinary hearing
- Establishing who will present the evidence at the disciplinary or arbitration hearing
- Deciding which witnesses and other evidence will be used
- Preparing questions for the employer’s witnesses
- Preparing questions to be used in order to cross-examine the evidence brought by the accused
- Preparing a draft closing statement.
Case law
In the case of NUM and others vs RSA Geological Services, a division of De Beers Consolidated Mines Limited (2004 1 BALR 1) the employer dismissed all the employees of its laboratory because a large quantity of kimberlite sample was found hidden on the premises.
While the employer was able to prove that three of the employees had been involved in the scam there was insufficient evidence presented to merit the dismissal of several others. Those employees were therefore reinstated.
Had the employer prepared properly for the hearing and had it brought sufficient evidence that all employees had been involved in the deception it would have been unlikely to have had to reinstate the dismissed employees.
This indicates the crucial need for expert skills in preparation for a disciplinary hearing. They either need to hire in such skills or to arrange for managers to be trained in how to prepare evidence for disciplinary hearings and how to present such evidence successfully.
