What is expected of the Employer? Fairness in the workplace. How do I present evidence during a disciplinary process.

This slide show is presented by Mr Michael Opperman from Omni Labour Consultants and the author of “A Practical Guide to Disciplinary Hearings”.

Types of dismissals  Incapacity - Ill health, poor work performance.  Operational requirements – Retrenchments.  Misconduct- Intentional Transgression.  Negligence.

Types of recognised fairness They are split into two categories  Substantively fair  Procedurally fair

The charge The charge would be made up of the following:  Who  What  Where  When  How  Why

Listen to the employee  The employee should be allowed the opportunity to state a case in response to the allegations.  Audi alteram Partem Rule.

Time to prepare and the Finding  The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee.  After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

Further rights  Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.  If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.

Presenting Evidence

 When presenting evidence one must assume that the chairperson knows nothing.  Do not take any knowledge for granted.  It is common cause that the chairperson may not fabricate evidence.

Schematic representation of process

Burden of proof  Balance of probability

Types of Evidence and their significance  Evidence intended to be used by an initiator should be tested against this criteria to test the admissibility thereof.  Evidence may be delivered in many forms. All these forms have a different impact on the case. Not all evidence presented may be used and allowed by the chairperson. For this reason it is prudent to know and understand the parameters of evidence which may be allowed to be used during the course of a disciplinary hearing and then also in which way it may be used in a hearing.

Identifying the evidence  Primary or direct evidence  Circumstantial evidence  Corroborating evidence

 Electronic evidence  Documentation/documented evidence  Expert Evidence  Admissions from the opposition Identifying the evidence cont…

Inadmissible Evidence  Hearsay evidence  Character evidence  Irrelevant evidence

The evidence filter degree of certainty 1. Certain 2. Near certainty 3. Extremely probable

The evidence filter degree of certainty cont… 3. Extremely probable 4. Probable 5. Realistically possible

The evidence filter degree of certainty cont… 6. Distantly possible 7. Improbable

Any Questions? For more information please contact Omni Labour Consultants or visit our website Michael Opperman