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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15594
Experience:  L.LB (UOVS)
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I have been given a Notice to Attend a Disciplinary Hearing

Customer Question

I have been given a Notice to Attend a Disciplinary Hearing with the charge being Gross Negligence by my employer's HR department. I was always under the impression that the onus/burden of proof lies on the employer to prove that I was gross negligent and that I will then be afforded to opportunity to defend myself against the evidence presented by the employer in the disciplinary hearing.

Am I entitled to get the documentation that the employer will present as evidence before the disciplinary hearing in order to prepare properly? Or will I see this evidence for the first time ever in the disciplinary hearing?
Submitted: 4 years ago.
Category: South Africa Law
Expert:  WCLawyer replied 4 years ago.
Good day.

1. First off, you are perfectly correct. The burden of proof is on them to prove your guilt, not you to prove your innocence. Also, you must be given the opportunity to defend the matter and may be allowed representation by a Union Representative or a fellow employee. You are allowed to call your own witnesses and you are allowed to call your witnesses, cross examine theirs and present your own evidence.

2. You are also correct in that the charge must be sufficiently formulated for you to know exactly what you were charged with in order to defend yourself. The employer should not be allowed to go on a fishing expedition at the hearing to establish other charges on which to dismiss you. You need to be wary of this and you should keep them to the charge sheet.

3. There is, however, no set rules when it comes to disciplinary hearings, merely guidelines. For instance, at CCMA, we exchange bundles of evidentiary matter before we start. If the matter is not complex, it is done the day of the hearing, but more often than not, that exchange is done a week or two before the hearing.

4. At the hearing, however, no set rules exist, but, if you are presented with a document and there are other documentary evidence readily available that can refute theirs, you will be well within your rights to ask the commissioner to stop the proceedings and order the employer to produce that document.

5. What you can do is inform your employer that the charge sheet is not particular enough in order for you to prepare for a defence. That you wish to see their documentation beforehand and you will afford them the same courtesy, that if they refuse, they run the risk of unnecessarily stretching out the hearing and run the risk of having the procedure declared procedurally unfair at the CCMA.

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Customer: replied 4 years ago.
Thanks for the response. I would however like to ask a few other questions around the same matter. I hope this is okay.

1) I was handed the charge sheet yesterday afternoon and the disciplinary hearing is this coming Friday. I do not have enough time to prepare for the case and would like to know how I can delay/stall to buy more time for preparation?

2) Yesterday afternoon I contracted a fairly bad case of laryngitis but is worried if I am off sick the day that the disciplinary will continue without me being present. Can they do that? I am further worried that I won't be able to speak at the hearing because of my condition and would like to get some help from a doctor. Will a medical certificate be sufficient?

3) What is the rules around valid evidence. I am worried that they present evidence that is inadmissible or that they throw out my evidence in the case of being inadmissible. Could you perhaps suggest further reading on this because I can understand that this is a big topic.

4) I have seen my firm operating like this in previous cases: Whether they win or lose after the disciplinary they claim a fundamental breakdown in trust relationship and then settle. They literally budget a couple of months of salary, then they just go through the motions with the idea of paying a low settlement. I know whether I win or lose I will be out. As a settlement what does the law state? Is three months usually fair, or 6 months or 12 months?

5) Lastly: Procedurally, if I loose tomorrow but have grounds for appeal I assume the time between the lost verdict and the CCMA case I will not be paid. Is that correct?
Expert:  WCLawyer replied 4 years ago.
1. Ask them in writing now. If you hear nothing from them, ask again at the hearing and inform the presiding officer that you have requested it earlier. He may refuse to give you an extension, but this you can use against them once you go to the CCMA.

2. If you get a medical certificate that state that you are not capable of working or conducting a hearing because you cannot speak, they should postpone. They will not, under those circumstances, be able to continue.

3. Yes, this is a huge topic and, unfortunately, I cannot refer you to a web source. There is that can assist you in preparing for this thing, possibly, but unless there is specific matter that you can think off, I will not be able to comply, short from cutting and pasting a book on the subject.

4. This is not covered in the law. A breakdown in trust is your arrow in the quiver, so to speak, not theirs. If you are found not guilty, they should accept it and move on, otherwise, they are basically saying that you are guilty, no matter what. So, in those circumstances, there is no obligation on you to accept any settlement agreement. Since this is the position, there is nothing in law that says that this is what a company must offer where there is a fundamental breakdown in trust. So, if you are open to this, it is basically whatever you are going to be happy with and they are prepared to pay. If you cannot come to an agreement, you stay.

5. Unfortunately, yes, you are correct. If you win at CCMA, however, you should make argument there that they should pay you for that time if you ask for re-instatement. If you are going for an award, rather than reinstatement, ask the commissioner to factor that into the award.

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