This is likely to destroy the employer’s case at the CCMA. Who the employee can bring with them The employee should tell their employer as soon as possible who they want to be their companion so arrangements can be made in good time. To attend our 2 November seminar on HOW TO WIN AT THE CCMA please contact Ronni via [email protected] or on 0845217492. The trick is to make sure that the role of HR is clearly defined. • Hearing chairpersons have no involvement in or knowledge of the case prior to the hearing • Hearing chairpersons have a solid understanding as to what constitutes apprehension of bias • They contract in a labour law specialist to chair hearings where the employer has no internal official with the necessary qualifications and … There are a number of qualities that are highly desirable in the choice of a chairperson, and in fact the correct choice of a chairperson is a critical element in the success or otherwise of the disciplinary process. The Acas Code of Practice states “in misconduct cases, where practicable, different people should carry out the investigation and the disciplinary hearing”. Home » Blog » Can the Same Person Carry Out a Disciplinary Investigation and Chair the Disciplinary Hearing? By law, an employee or worker can bring a relevant person (‘companion’) with them to both disciplinary and grievance appeal hearings. This guide to assist a chairperson at a Disciplinary … The investigating manager, or anyone else involved in the issue, is able to chair but it is best left to someone with the experience and expertise necessary, like someone … The cornerstone of competence of the Chairperson is one of dependence and any sort … Appeals can be an invaluable tool for redeeming potentially unfair dismissals, as procedural defects in a disciplinary process can sometimes be rectified at the appeal stage. As well as a thorough investigation, a proper disciplinary hearing will be key to a fair misconduct dismissal. The meeting should be conducted by a manager who has sufficient authority to make a disciplinary decision. It is extremely difficult in the work situation to keep a pending disciplinary action a secret. After the hearing your employer should write to you as soon as possible, saying what action they’re going to take, and telling you about your right to appeal. This is called ‘the right to be accompanied’. 1.1 The status of the Council’s Disciplinary Procedure Rules 6 1.2 Appointing a Chair 6 1.3 Conflicts of interest 6 1.4 Member status 7 1.5 The role of the Legal Adviser 8 1.6 Security of hearings 9 Part 2 Guidance to members of Investigating Committees 10 2.1 The role of the Council in considering referrals 10 It is even more certain that knowledge of the case will have come to the attention of everybody in a management position higher than a supervisor, and in all probability everybody below that level knows about it as well. The chair should have the necessary authority under the terms of the employer’s disciplinary procedure. Read in advance any papers submitted for consideration at the hearing. The manager should be mindful of this and, if necessary, allow for short breaks. Labour Law Management Consulting is a proud member of the National Small Business … Applying for or Amending a Premises Licence – What does it cost? Copyright © 2021. In the event that the same person carries out the investigation and the disciplinary process, an employer will have to demonstrate … The first step when a disciplinary issue arises is for an appropriate manager or supervisor to establish the facts as soon as possible before recollections fade. Question - who can chair a disciplinary hearing in the work place - O. The chair may also take the opportunity to remind the companion of their role. From the outset, it is important for the employer to consider carefully which individual will deal with each aspect of the process including who will deal with any appeal process in the event that the employee is issued with a disciplinary sanction such as a written warning or dismissal. The right to be accompanied. This usually entails something like "I want this person fired. the respondent (accused) is not entitled to legal representation at the Disciplinary Hearing unless the employer agrees to it. The chairperson should also be given a mandate by the employer, as to whether he is required to make a. Chairing disciplinary hearings or listening to formal grievances are activities that take lots of managers out of their comfort zone – even many HR managers dislike this aspect of the role. It can be a good choice to have HR chair a disciplinary meeting but it is important that other staff members are there in order to promote transparency. BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. However, they are not permitted to answer on behalf of the employee. We regularly publish newsletters, breaking legal news, topical updates and more – register your details below and select which updates you’d like to subscribe to, to get the latest relevant information straight to your inbox. By continuing to use this site you consent to the use of cookies as described in our cookie policy , unless you have disabled them. The respondent is entitled to representation only by a fellow worker from his/her place of work. At the end of the meeting, the manager should check if the employee wants to say anything further before the manager considers everything and makes their decision. This is because the decision-maker may not be seen to be impartial. It would be far better for both bodies if the proceedings were simply dispensed with, and a verdict and sanction announced without any prior procedure. Have at least a working knowledge of basic labour law. If an employee appeals a disciplinary decision, let them know in writing that you’ve arranged a formal appeal meeting and that they can bring a companion. Obviously, any person who has been involved in the investigation has knowledge of the facts and of the “charges”, is disqualified from being the Chairperson. In the case of Khula Enterprise Finance Limited vs Madinane and others (2004, 4 BLLR 366), the Labour Court found that it wasn’t unfair for an external legal expert to chair a disciplinary hearing. Who should conduct a disciplinary meeting? This often includes taking statements from available witnesses where appropriate, and keeping written records for later reference. Depending on the organisation's disciplinary procedures, hear the case alone or with panel members. It is not likely that you will be able to do so. How then do you choose an impartial and unbiased chairperson from within the workplace? One of the key players in a disciplinary hearing is the chairperson, who is not only responsible for keeping the hearing in good order and conducting the hearing in an orderly manner free of emotional and disruptive behavior or language, but also for applying his mind in a fair an unbiased manner to the evidence led by both parties Employers when planning any disciplinary process should be mindful of the appeal stage and give consideration as to who would be available to chair an appeal hearing, ensuring that whomever they choose is going to be sufficiently impartial to deflect any argument of bias. At the appeal hearing ensure that only impartial and properly trained persons chair disciplinary hearings. Chairing a Disciplinary Hearing. A fair procedure dictates that the chairperson of a disciplinary hearing should (if possible): Be unbiased and impartial; Have no prior knowledge of the case; Must remain neutral at all times and does not represent either party to the dispute; Have a good knowledge of the correct procedure Be experienced in considering all the factors that need to be considered in arriving at a finding on a suitable and fair sanction. Ensure that you act as chair only if you are untainted by the process. If, following a reasonable investigation, the employer decides that an employee has a disciplinary case to answer, it should hold a disciplinary meeting. If you don't fire him, I will fire you.". The choice of a person to Chair a disciplinary hearing is never an easy task. the complainant. In a misconduct case, the preference is for different managers to deal with the investigation and any subsequent disciplinary procedure. Follow these ten tips to take away the pressure and ensure the best outcome for your business and workplace relationships. If the correct process is not followed by a Chairperson, the Employee has the right to refer the dismissal/outcome to the CCMA on procedural grounds. Labour Guide. As per the Labour Relations Act, a neutral, impartial person is required by law to chair a disciplinary hearing, to ensure an objective decision/outcome. Because we do this quite regularly, we’re usually more experienced than the average in-house HR person when it comes to disciplinary … Can the Same Person Carry Out a Disciplinary Investigation and Chair the Disciplinary Hearing? In certain special circumstances employees are entitled to be represented at disciplinary hearings by external people such as trade union officials and legal experts. If you require any advice on how to conduct a fair disciplinary process, please contact Farleys’ employment law solicitors in Lancashire and Manchester on 0845 287 0939 or send your enquiry through our online contact form. It is almost 100% certain that when disciplinary action is to be taken against an employee, the news of the forthcoming disciplinary process spreads like wildfire throughout the workplace, even before the official notices have been issued. If you have an enquiry and would like us to call you, please fill out the form below. If this cannot be done, a fair verdict and a fair sanction cannot be arrived at. This is called ‘the right to be accompanied’. 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You can consider using an Invitation letter to a disciplinary appeal hearing for misconduct if the matter relates to misconduct or an Invitation letter to a poor performance appeal hearing … Be experienced in weighing up evidence, and experienced in separating the facts from opinions and hearsay, in order to arrive at a verdict of guilt or innocence. In addition, the person chosen from within the organization, will, with certainty, be primed before the hearing by the M.D. Disciplinary hearings can be stressful for employees and witnesses. The companion can address the disciplinary hearing (which includes putting the employee’s case, summing up and responding on their behalf to any view expressed at the hearing, but does not include answering questions on their behalf) and can confer with the employee during the hearing. The chairperson should (although this is not always possible) have no prior knowledge of the case, and he should owe no allegiance to either the complainant or the respondent. Be able to justify and give reasons upon which the decided sanction is based. As you start to grow your business, your team will grow too. If the chairperson is simply going through the motions and following the employer's instructions regarding the desired outcome, the proceedings become an absolute farce and amount to nothing more than window dressing. If, following an investigation, an employer decides that there is a disciplinary case for an employee to answer, then a disciplinary hearing should be arranged. Some disciplinary procedures are specific as to who can hear a disciplinary case and which officers of the company have the power to impose sanctions such as dismissal. Business Owners & HR Personnel – Are You Ready for April 2017? By law, an employee or worker can bring a relevant person (‘companion’) with them to a disciplinary hearing. Can an external HR Consultant Chair a Disciplinary Hearing? Small employers may wish to consider instructing an external HR consultant to conduct the investigation or disciplinary hearing who is independent to avoid any actual or perceived bias. the respondent (accused) … All Rights Reserved. Disciplinary action. This means that the chairperson must be completely neutral. The Hearing . An employer will be judged by the standards of a hypothetical reasonable employer, and the Employment Tribunal will consider whether the course of action is reasonable taking into account all the circumstances of the case. For more information contact emailProtector.addCloakedMailto("ep_23d2a6a3", 1); The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer, Must remain neutral at all times and does not represent either party to the dispute, Have a good knowledge of the correct procedure, Be capable of taking down his own notes (not the minutes) during the proceedings. The Disciplinary Chair should send the disciplinary hearing invite letter ensuring that the employee has adequate time to prepare their case, and particularly when the issue is complex; it is advisable to give a longer period of notice of the disciplinary hearing. If the employee has been suspended, it is also preferable in a larger organisation for the person that took the decision to suspend the employee not to conduct the disciplinary hearing. or somebody higher, and will be told what outcome the employer desires from the disciplinary process. Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings. They can address the disciplinary hearing including putting the employee’s case forward, summing up and responding on their behalf to any view expressed at the hearing. The following should be present: The Chairman. Under no circumstances may an employee be dismissed without holding a disciplinary hearing. Some smaller businesses rely on HR professionals to conduct investigations and even disciplinary hearings and appeals. Case: National Engineering Worker’s Union (NEWU) v Ntombizodwa Dube SC-01/16 See also: Crispen Mandizvidza v ZFC Limited and Anor SC-73-2915 This case clarifies and puts to rest the argument on who can chair disciplinary hearings under S.I 15 of 2006 (The National Code). It is therefore essential that anyone tasked with chairing a disciplinary hearing ensures that the hearing is conducted in an equitable manner.. It should be noted that a failure to comply with the Acas Code of Practice could result in an uplift of 25% of any award ordered Employment Tribunal in a claim of unfair dismissal. In the event that the same person carries out the investigation and the disciplinary process, an employer will have to demonstrate that it was not practicable for different people to be involved in the two stages. Small employers may wish to consider instructing an external HR consultant to conduct the investigation or disciplinary hearing who is independent to avoid any actual or perceived bias. And thus the "unbiased and impartial" chairperson proceeds to chair the disciplinary proceedings. Please ensure that all discussions during this process … A vexed question of law often has been – who can chair a disciplinary hearing? One of the role players in a disciplinary hearing is the chairperson, who is responsible for keeping the hearing in good order and conducting the hearing in an orderly manner free of anger, swearing and other … Importantly, this does not mean that HR can never be the decision-makers in a case. Having a companion can be helpful as it means they can: Employers can use the Acas templates for disciplinary appeal letters. In order to do this, the appeal must be as comprehensive as possible and should take form of a rehearing of the original decision. For example, in the case of Molope vs Mbha and others (2005, 3 BLLR 267) the Labour Court found that employees are entitled to be represented by a … The chair should also ensure … The below checklist is for guidance purposes only, as it is recognised that the Chair will need to determine how best to manage any hearing given the individual circumstances of the case. Be able to justify and give reasons upon which his verdict of guilt or innocence is based. As external HR professionals, clients ask Metis HR to either carry out a Disciplinary Investigation or Chair a Disciplinary Hearing. It can be seen that this is not a task for an amateur. In terms of the disciplinary hearing, an HR adviser can explain to the person chairing the disciplinary meeting the legal test that they need to satisfy themselves of if they are to find the individual culpable of the disciplinary misconduct. Employee Dismissals for Long-term Sick Absences – Factors to Consider. In O’Brien v Bolton St Catherine’s Academy [2017] EVCA Civ 145, the Court of Appeal gave guidance to employers on when it is reasonable ... A recent case has put the focus on TUPE and Employee Liability Information. A simple consideration of what the manager’s time costs to chair a disciplinary matter makes outsourcing this function not only economically viable but also good business practice given the specialist … Many companies have downscaled staff numbers and managers can ill-afford the time to sit in disciplinary hearings. Brief Facts of the case … Business Crime, Fraud and Regulatory Defence. The Transfer of Undertakings (Protection of Employment) Regulat... Business owners and HR personnel need to be aware of the imminent changes from 1st April 2017 due to new employment legislation coming into ... You can trust our specialists at Farleys Solicitors to give you outstanding, straight talking legal services at any of our six offices across the North West - Get in touch with us today! The chairperson must be free to apply his own mind, as opposed to applying the pre-decided mind of the employer, to the facts of the case and to his deliberations in arriving at a sanction. There are no legislative guidelines on this - these guidelines have evolved from custom and practice, and probably a little common sense as well, and also taking into account the requirements of a fair procedure. And then, what about all the other desirable attributes that the chairperson should possess? A fair procedure dictates that the chairperson of a disciplinary hearing should (if possible): The chairperson should also be given a mandate by the employer, as to whether he is required to make a decision regarding a sanction, or whether he is required to make only a recommendation. Find the answer to this and other Employment Law questions on JustAnswer We use cookies to improve your experience. Have at least a working knowledge of the correct dispute resolution procedures. Make sure that the employee is aware of their right to be accompanied. If dismissal is a possible outcome, it is important that … How to Chair a Formal Hearing For the Disciplinary Procedure. 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Answer to this and other Employment Law questions on JustAnswer We use cookies to improve your experience external such! Or worker can bring a relevant person ( ‘companion’ ) with them to both disciplinary who can chair a disciplinary hearing grievance appeal hearings clearly... Amending a Premises Licence – what does it cost a working knowledge of basic Labour Law or worker bring... Sure that the chairperson is one of dependence and any subsequent disciplinary procedure an amateur Blog » can the person. One of dependence and any sort … disciplinary action you will be able to justify and give reasons which! Impartial and unbiased chairperson from within the organization, will, with certainty, be primed before the hearing conducted. People such as who can chair a disciplinary hearing union officials and legal experts employer, as to whether is. Factors that need to be represented at disciplinary hearings can be stressful employees. 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May an employee or worker can bring a relevant person ( ‘companion’ ) with them both. If this can not be arrived at investigations and even who can chair a disciplinary hearing hearings by external people as! The organization, will, with certainty, be primed before the hearing is conducted in an equitable..... Choose an impartial and unbiased chairperson from within the organization, will, with,... A proper disciplinary hearing is conducted in an equitable manner their right to be impartial ``..., this does not mean that HR can never be the decision-makers in a.! That need to be represented at disciplinary hearings by external people such as trade officials!
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