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Post Info TOPIC: Poor work performance Disciplinary hearing
Anonymous

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Poor work performance Disciplinary hearing
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Good day,

 

I have been called to a poor work performance disciplinary hearing and requested from my company a copy of the investigations which were done and also any written statements supporting their case so that I can prepare my defense.   They e-mailed me back that I would only be able to get it on the day of the hearing.  Can they do that or do i have the right to see what they have against me before the day of the hearing.

 



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Anonymous

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Although this Inquiry was submitted a while ago, this is also an interesting topic for discussion.

The following concept has reference: " there is no such thing as a trial by ambush"

A disciplinary hearing should be both procedural and substantively fair, in breakdown of procedure (to answer the question above) lets take a basic overview on this concept.

Procedure (basic overview):

You must be notified in time - it is widely endorsed that 48 Hours are sufficient notice;

You must be informed of the charges against you in a manner  that you can understand;

You must be informed of your rights as an employee subjected to a disciplinary hearing;

You must have sufficient time to prepare.

Most employees confuse the concept of "sufficient time to prepare" with "must be notified in time" and draw the conclusion that it is the same thing, in fact, these concepts have two different meanings assigned to them namely:

You must be notified on time - meaning that you should not receive less than 48 hour's notice (common law principals endorsed by CCMA) this is the meaning hereof, thus a minimal time barrier is posted that is 48 hours and should not be confused with maximum time notification, thus saying everything over and above 48 Hours notice is deemed to be "reasonable Time"

The second concept "you must have sufficient time to prepare" fall on you, it is not necessarily true that you can prepare a defense to the allegations within 48 Hours, or even have the know how to prepare a defense against an accusation of misconduct or incapacity, therefore the "48 Hour" principle by giving notice does not apply to sufficient time for preparation.

The onus however will be on you to inform the employer in advance or at the hearing that you require more time to prepare whereas such request should not be reasonably refused to by the employer, you must set out reasons for your request for postponement, thus meaning you cannot sit around before the television and sate to the employer that you were watching 7 de laan and therefore you could not prepare, no, it must be a reasonable argument (the concept reasonable is as wide as our Lord's mercy so it is difficult to place margins on "reasonableness") but for instance that you have sought outside advise and that the Attorney/Consultant can only see you at a specific time, further that you are inexperienced in this matters and therefore will be prejudicial towards yourself in the event that you are not allowed reasonable time to further prepare your defense and seek the necessary advise on this matter.

Notwithstanding the above, I love to use this example: If you are sick you go to consult a Doctor on your condition AFTER you have seen the doctor will he/she book you off or provide you with a note that confirm attendance, employers accept this behavior, in fact, the Basic employment of conditions Act make provision therefore _ sick Leave.

It is therefore accepted that you are not a Doctor and that you would need to consult a Doctor if you are sick, nobody decide for you that you are sick and now need to see a doctor, no, it is you yourself that make such decision. 

The same principle must be applied to by "sufficient  time to prepare", you have the opportunity to consult a professional before you enter a disciplinary hearing just like you would consult a doctor in a medical situation you can consult a professional on legal matters, in essence a disciplinary matter is a legal proceeding. The CCMA and Labour Courts endorsed this concept and has established common law through the years that is upheld.

The above been said, it is therefore that outside representation (person representing you outside your work environment) may not be summarily refused based on an employer's policy alone, the outside representative must be afforded a reasonable opportunity to make representations as to why he/she should represent you.

Disclosure of information is a fundamental part of procedure and preparation, you cannot prepare on something that you do not have, the employer may not "ambush" you with information that you did not have prior to the hearing that relate directly to the disciplinary charges, they must disclose all relevant information to make the hearing procedurally fair.

It is of fundamental importance that once you are subjected to a disciplinary hearing that all communications be directed to a either party in writing so it can not be disputed later on, should you require further information you must direct your request in writing to the employer beforehand setting out the reasons as to why you request such documentation or witness statements the employer are obligated to provide you with same or give reasons why not. in the event that the employer unreasonably refuse to provide further particulars, the hearing can be flawed at procedure that will render the entire process unfair regardless of Substance (the charges).

It may appear during the course of the hearing that the employer produce evidence (regardless of its statue) that you where unaware of, you may stop proceedings and reason the fact that you did not know about the evidence produced and that you are not prepared to argue or the defend yourself against this evidence, the hearing must allow you a opportunity to examine the evidence and to properly prepare therefore, if not, the hearing at procedure is flawed and unfair. 

In conclusion I state again "there is no such thing as a trail by ambush" you should be informed and your right thereto.

Hope this help

Regards

Rautenbach & Associates



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