1 Welcome all present.
2. Introduce yourself and any other participants unknown to each other.
3. State the purpose of the enquiry:
This enquiry has been convened to hear evidence in respect of charges brought against (respondents name) by (employer’s name or name of complainant). The complainant is represented today by Mr./Mrs. …………………………………. Evidence will be led firstly by the complainant, and then by the respondent.
After all the evidence has been presented, the enquiry will be adjourned, and we will re-convene on Monday 3rd November at 9am. The reason for the adjournment is to allow me sufficient time to type the minutes, and to consider the evidence presented from both sides to enable me to consider the matter on the balance pf probability to decide whether the respondent is guilty or not guilty as charged.
Should the verdict be one of guilty, then at the continuance of the enquiry on Monday 3rd November, I will inform you of my verdict and the reasons for it. If the verdict is one of guilty, the respondent will be given to opportunity to present any further evidence that she may have omitted and present any mitigating factors.
The meeting will then again be adjourned to allow me to consider a suitable sanction, to type out the finding and the reasons for that finding. When I consider what sanction to impose, I will take into account such factors as any mitigating circumstances put forward, anything in evidence that may be regarded as a mitigating circumstance or mitigating evidence, I will consider the respondents length of service, her previous disciplinary record, what training she has received and so on.
All this is necessary to ensure that the sanction is imposed for a fair reason and that the sanction is fair in all the circumstances of the matter. At the continuance on Tuesday 4th November, I will deliver the sanction imposed and that will be the end of the matter.
Inform the respondent: you do understand of course that you have the right to appeal against any verdict that I may arrive at, and you have the right to appeal against any sanction that I may impose. Should you wish to appeal, this must be done within 5 days of the end of this hearing, and you must submit to management in writing a letter requesting an appeal and state the reasons on which your appeal is based. Should you not be satisfied with the outcome of the appeal, you have the right to refer the matter to the CCMA should you wish to do so.
4. Ask the employee if she understands her rights as explained in the Notice of Disciplinary Enquiry. If the answer is in the negative, go through her rights with her.
5. Ask if she has a representative present and record the name of the representative.
If she has no rep, ask if she wants one.
6. Get agreement that the enquiry will be conducted in English or IsiZulu.
7. Inform the respondent that the proceedings will be taped, and they are entitled to receive a copy of the tape if they pay for the blank tape and the copying thereof.
8. Explain the procedure to be followed:
- all questioning will take place under your direction;
- disorderly conduct – shouting and/or arguing will not be allowed;
- the employer will first give evidence in support of his charges and call witnesses;
- a witness is not to be interrupted while giving evidence;
- when a witness has completed giving his evidence, the respondent will have the opportunity to cross examine that witness;
- after the respondent has completed cross examination, management or the Chairperson may ask clarifying questions;
- after management has presented its evidence and called all its witnesses. The respondent will then give her evidence in reply and call her witnesses;
- after the witness for the defense has given evidence, management will be given an opportunity to cross examine that witness;
- the respondent and the Chairperson will be allowed to ask clarifying questions of the witness;
- the respondent will be allowed to testify herself and lead evidence;
- management and the Chairperson may cross examine the respondent and ask clarifying questions;
- Witnesses will be called singly and will be excused when their evidence and cross examination has been completed;
- The Chairperson may also question witnesses; and
- Any adjournments will be at your discretion.
9. Ask if everybody understand the procedure?
10. Read out the charges to the respondent, and ask her if she understands the nature and the seriousness of the charges against him/her?
11. Ask the employee to plead to the charges and record the plea.
12. Ask the respondent what position she holds in the company and a brief description of her duties.
13. Management must then lead evidence and call their first witness. After the witness has finished leading his evidence, ask any clarifying questions you may have.
14. Ask the respondent if she wishes to question management or the witness.
15. allow all relevant questions.
16. do not allow irrelevant or frivolous questions.
17. When all management witnesses have testified or management has completed leading their evidence, allow the respondent to proceed with her evidence and witnesses.
18. when all evidence has been presented, adjourn the meeting. This adjournment must be for a reasonable period – say at least 2 days. The minutes must be typed, the Chairperson must consider all the evidence, weigh it up on the balance of probability, and then decide on guilt or innocence.
Note:
All this cannot possibly be done in 15 minutes or even 5 hours. If the Chairperson is to do his/her job properly, this process will take at least 2 days minimum. Any Chairperson who adjourns for 10 minutes, comes back and returns a verdict of guilty and a sanction at the same time, has not done his/her job and has no right to hold the title of Chairperson.
Any Chairperson who acts like that has merely rubber-stamped previous instructions received from the employer, which renders the whole procedure a total farce and grossly unfair.
19. When the meeting is reconvened, the Chairperson will deliver his verdict and explain his reasons for arriving at that verdict. He will explain what evidence led him to believe, on the balance of probability, that the respondent was guilty.
20. The Chairperson will then ask the employee if they have anything to add, any other evidence to lead, or any other circumstances, personal or otherwise, in mitigation of sentence.
21. The Chairperson will then call for the respondent's disciplinary record (personal file) and armed with that together with a knowledge of the respondent's personal circumstances, will proceed to decide on a sanction based on a fair reason.
22. The meeting will be re-convened, and the Chairperson will deliver the sanction decided upon and give reasons for deciding on that sanction.
23. confirm in writing to the employee that the employee has the right to appeal within 5 days and state reasons on which the appeal is based.
24. state that the employee has the right to refer the matter to the CCMA if she feels aggrieved in any way by in terms of unfair treatment or procedure.
It must be carefully noted that the arriving of a verdict of guilty or not guilty and the arriving at a decision on the sanction to be imposed are two distinct processes – the one bears no relation to the other.
In considering the verdict of guilty or not guilty, the Chairperson will consider all the evidence led at the Disciplinary Hearing by both parties. Based on that evidence, he will decide, on the balance of probability, whose story is more likely to be true – that of the complainant or that of the respondent. Based on the decision of whose story is more likely to be true, he will arrive at a verdict of guilty or not guilty.
A sanction will only be considered if the verdict is a guilty one. If the respondent is found not guilty, then that verdict is communicated to the respondent and the matter is closed.
In considering a sanction, the Chairperson will largely ignore the evidence – he will consider facts such as the length of service of the employee, the position held in the company, the seriousness of the offense, the personal circumstances of the employee, the degree of remorse if any, and any other mitigating or aggravating circumstances.
The Chairperson must also consider the employer’s own Disciplinary Code and Procedures, and also consistency in terms of previous sanctions imposed for similar offenses.
The letter advising the respondent of the sanction imposed should contain points 23 and 24 above in the same letter.