HOW EMPLOYEES SHOULD PREPARE FOR A DISCIPLINARY HEARING

A. INTRODUCTION

1. Many employees find themselves faced with the prospect of appearing at a disciplinary hearing. Unless they are members of a trade union that is present in the workplace, they find themselves without any professional assistance and have to rely on information gained before the hearing and at best the support of a colleague at the hearing itself.

2. A disciplinary hearing can be a make-or-break situation for many an employee. It can mean the difference between continued employment or searching the market for months, even years, looking for another job. It is not a process to be taken lightly. You must prepare for the hearing like a professional. When you enter the room in which the hearing is to take place, you must be thoroughly equipped for what you need to do. In a sense, what this article attempts to do is to make you your own lawyer to the extent that it is possible in such a short time.

3. Many employees have approached me for assistance in this situation. Their dilemma is that unless they have a trade union representative or colleague with experience of these things, they cannot have any expert representation. They are vulnerable - Daniel facing the lions. That is why I have prepared this guide to assist them in the absence of an attorney or labour expert at their side when appearing before a disciplinary hearing.

4. Please do not be put off by what you might think are a complicated set of requirements. I have simplified these requirements and, in their essence, the requirements themselves are not complicated. The hearing is not a high court trial and no one expects you to conduct yourself as a professional advocate. On the other hand it can only be to your benefit if you acquaint yourself with the way disciplinary hearings work. That will enable you to present your case in the strongest way you can.

B. WHAT SHOULD HAPPEN BEFORE A DISCIPLINARY HEARING ?

1. Your employer needs to properly investigate the allegations against you to satisfy itself that there is a reasonable amount of evidence against you;
2. you then need to receive an official written notification of the disciplinary enquiry. This notification should indicate the time, date and place of the hearing.
3. You should have at least three business days to prepare your defence;
4. the notification needs to set out the charges against you. The charges should be clearly phrased to ensure an understanding of the exact allegation against you. It should also refer to the clause of the employer's code of conduct that creates that offence, unless the offence is one which all reasonable persons would recognise as such;
5. the notification must also set out your other rights, namely –

5.1 your right to be present and to state your case;
5.2 your right to representation by a trade union representative or a colleague;
5.3 your right to present evidence in your defence;
5.4 your right to call witnesses;
5.5 your right to respond to and cross-examine the employer's evidence and witnesses;
5.6 your right to an interpreter, if required.

C. WHAT HAPPENS AT A DISCIPLINARY HEARING ?

[Notes:
1. The description below is a procedure that should be followed in medium to large organisations. In smaller organisations, it is impractical to comply with all these guidelines but the spirit of a fair hearing in which you receive full opportunity to state your case should nevertheless be satisfied.
2. It is not for you to prove your innocence. The employer bears the burden of proof to establish your guilt. Within the constraints of integrity, do not voluntarily offer evidence of your innocence until the employer has provided evidence that strongly indicates evidence of your guilt.]

1. The major parties at a disciplinary hearing consist of –

1.1 an impartial chairman. He should not have been involved in any dispute between yourself and your employer;
1.2 the employer's representative - usually the human resources representative or a senior and uninvolved line manager; and
1.3 you, the employee, and preferably also your trade union representative or colleague to assist you.

2. The Chairman should -

2.1 introduce himself and the parties present;
2.2 ensure that the time, place and persons present are duly recorded;
2.3 state the purpose of the enquiry;
2.4 ensure that a record of the proceedings is kept during the hearing (you could do well to bring along your own tape recorder so that you have your own independent record of the proceedings;
2.5 satisfy himself that all your rights have been recognised;
2.6 request you to indicate whether you believe you are guilty or not guilty of the charges.

3. If you plead guilty (not advisable except in the clearest of cases), the chairman will have to decide what sanction (punishment) to apply and therefore should –

3.1 satisfy himself that you understand the consequences of the guilty plea;
3.2 ask the employer's representative to offer facts or reasons why you should receive a heavy sanction (aggravating factors);
3.3 ask you to offer facts or reasons (mitigating factors – see Section H below) why you should receive a light sanction (eg a warning);
3.4 have a copy of the disciplinary code and procedure and be provided with your disciplinary and service records;
3.5 either announce the sanction immediately or adjourn the hearing to a predetermined time in order to do so;
3.6 if the sanction is dismissal, the chairman needs to remind you of your right to appeal either in terms of the internal disciplinary procedure or else, if this does not exist, to the CCMA;
3.7 advise you to obtain your written dismissal notice and certificate of service from Human Resources. You should also tie up any other loose ends with your Employer at this time;
3.8 draw up a disciplinary enquiry record and report & date it before providing a copy of it to the employer and yourself.

4. If you plead not guilty, the chairman should follow the procedure below –

4.1 You should be asked to hand in your “bundle of documents” (ie all the documents, emails etc relevant to the issue, with page numbers and a contents page giving the name of the specific document as well as its page number) to both the chairman and the employer’s representative.

4.2 After the employer’s representative has given its opening statement (if it chooses to do so) you should present your own opening statement, in which you outline your case briefly. It is important for you to do this. I outline in paragraph D below what you need to do to prepare it.

4.3 The employer and then you will in turn present your substantive cases by way of the evidence of as many witnesses as you each intend to call. I outline below in section F what you need to do to prepare for this.

4.4 You will be able to cross-examine each of the employer's witnesses (See section E). They will have the same opportunity when you call your witnesses.

4.5 Once all the witnesses have given evidence in turn, the employer will be given a chance to make a closing statement after which you will be able to do the same. The employer will again be able to address the hearing, but only concerning new points that you have raised in your closing statement. I outline below in section G what you need to do to prepare this.

4.6 The chairman should then –

4.6.1 ensure that the parties are satisfied with the manner in which the enquiry has been held;
4.6.2 ensure that there is no further evidence to be presented or questions to be raised;
4.6.3 either announce his verdict immediately or adjourn the hearing and said a time for recommencement to give him a chance to consider his verdict;
4.6.4 if the latter, recommence the hearing and announce his verdict;
4.6.5 if the verdict is not guilty, that is the end of the matter;
4.6.6 If the verdict is guilty, the chairman should follow the steps described in clause 3 above.

D. PREPARING AN OPENING STATEMENT

1. The Importance of an Opening Statement:

The opening statement is often neglected. Its tactical value is under-estimated. The opportunity to use an opening statement begin the process of persuasion is often not exploited fully. It can play an important role in that process. It introduces to the chairman the issues and the evidence to be led on the issues, making the chairman's task easier and more focused. You have a right to make an opening statement. Insist on being able to exercise that right.

2. The Purpose of the Opening Statement:

This is to explain what the case is about. It enables the chairman to place the details of the evidence given in the context of your case as you have already explained it. You give him an indication of what case you intend to establish and how you intend to do so with the evidence at your disposal. Failing this, the chairman will not know beforehand the facts that will be proved and the evidence available to establish them. If he receives the evidence piecemeal, he can easily obtain a skewed view of the overall picture. Your opening address will enable him to have a better grasp of the issues so that the significance of each item of evidence will be apparent.

The opening address is not an argument. It is an opportunity to outline the facts that you hope to prove. It must be brief (± 5 mins). State the facts simply, without adornment, so that they speak for themselves. Deal candidly with any weaknesses in your case while coupling it with a compensating fact that diminishes the damage and gives the chairman a context in which to place the weakness servitude has less of an impact on your case. Avoid argument and exaggeration. Use a moderate - even understated - tone.

3. The Structure and Content of an Opening Statement

An opening statement must have a logical structure. It needs to explain a plain story in clear language. It must also put all the important part of the story in a proper context. There must be order and clarity. I suggest the following –

3.1 State what the issue is: eg “Mr Chairman, this hearing is about my alleged misconduct in that I am supposed to have…… [here describe the central allegation/s against you]”.
3.2 Summarise the material facts of what your employer is alleging and point out that it is your employer’s responsibility to prove those facts “on a balance of probabilities”. This means that your employer’s allegations must be at least 51% more likely than that your explanation of what happened.
3.3 Summarise the material facts you are alleging. Consider setting out the timeline of the relevant events. If you like, do it in a written schedule and hand this to both the chairman and your employer’s representative.
3.4 Identify the witnesses you will call and summarise the evidence that each will give.
3.5 Finally, state to the chairman your relief sought. In other words, what you would like the chairman’s findings to be. I presume it would be a finding of not guilty.

E. PREPARING YOUR QUESTIONS FOR THE EMPLOYER'S WITNESSES (Cross- Examination)

1. This phase of the hearing takes place after your employer has finished asking the questions of its witness. He will have done this in order to enable the witness to provide the facts of which he has knowledge to the disciplinary hearing. You now have a chance to ask that witness questions that will serve to challenge the truth of what he has been saying or to evoke answers to issues that he has failed to mention. This is known as cross-examination.

2. You cross-examine opposing witnesses in order to make your own case better.

3. The purposes of cross-examination are pursued through questions which –

3.1 encourage or oblige the witness to provide favourable evidence for you;
3.2 test and even hopefully discredit the reliability of the evidence the witness gave when being questioned by the employer's representative (eg contradictions);
3.3 put your version of the disputed facts to the witness so that the witness may comment. It is important to do this because, if you do not, the fact that you have not allowed the employer's witnesses to comment on allegations and/or evidence that you intend to present, will count against you.

4. Cross-examination, like an opening statement, is a tool of persuasion. It is used to try and have your evidence accepted and the employer's evidence rejected. It is a tough assignment. Few witnesses are suddenly likely to give you a gift of agreeing to the submissions that you put to him in support of your own case. This is especially true if his change of evidence will be against his own employer.

5. While the employer’s witness is giving his “evidence-in-chief”, you should take notes. Create a margin down the side of the page (most professionals prefer the right side for some reason) so that you can mark any part of the witness’s evidence that you want to challenge in cross-examination.

6. Your first priority in cross-examination should be to entice favourable evidence from an opposing witness. At the least you will need to –

6.1 be courteous to the witnesses;
6.2 lead the witness to the answers by asking questions that suggest the answer you are seeking;
6.3 be satisfied with a significantly favourable answer. Don’t push things too far. You might lose the advantage by doing so. A bird in the hand is worth two in the bush. Do not flatter the witness by continuing an unrewarding cross-examination. Many a good cross-examination has been ruined by a question too many;
6.4 keep the questions short, asking for, or suggesting, one fact at a time.
6.5 avoid arguments with the witness. Ask questions in such a way that you invite facts rather than arguments or explanations.




F. PREPARING YOUR QUESTIONS FOR YOUR OWN WITNESSES (Evidence-in-Chief)

1. This is the most important phase of the hearing for you. It enables you to put forward your own version of the facts, answer the employer's version and strengthen your own witnesses.

2. The biggest danger in this phase of questioning is asking what is called a “leading question”. This is simply a question that indicates the answer that you are seeking from the witness. The facts have to be provided by the witness not you. You must not therefore suggest what he should say in reply to your question. The absence of leading questions enables the chairman to evaluate the evidence of your witness on its own merits instead of in response to your own suggestions. If you start your questions with where? When? What? Who? Which? How? or Why? you will avoid leading questions.

Another way of avoiding leading questions is to present the witness with an alternative. Instead of asking “you saw him drive away didn’t you ?” ask “did you or did you not see him drive away?”

3. You must plan the following carefully –

3.1 be clear in your mind what facts you want to establish with each witness;
3.2 plan a structure for the questions to put each witness. (Do a rehearsal with your witness if you can.) This normally involves –
3.2.1 introducing the witness. (ie give some easy questions – name? address? Etc) ;
3.2.2 have the witness explain why he/she can testify to the facts you want to submit to the hearing (eg she was at the scene, works in the same department, etc.);
3.2.3 deal with the subjects you have hopefully previously agreed with the witness;
3.2.4 lead the evidence on each topic in chronological order (exhaust the evidence on a given topic before moving onto the next; ie keep each topic in a separate category);
3.2.5 if necessary, deal with the employer's version (if you want to take the sting out of the anticipated cross-examination of your witness by the employer’s representative, ask your witness questions dealing with the other side's version);
3.2.6 anticipate topics of cross-examination by your employer and discuss these with your witness without actually telling her what to say.
3.3 If you can, obtain a statement from the witness that sets out all the evidence that witness will be providing. You can then use this as a guide for the questions that you ask that witness.
3.4 If necessary, inform the witness that he or she should address the chairman not yourself.

4. Some tips to apply during examination-in-chief

4.1 do not ask loose or vague questions rather than those that are simple and short and which elicit only one fact at a time;
4.2 use simple everyday language rather than clichés or slang;
4.3 make eye contact with the witness;
4.4 where possible or useful, supply visual aids, demonstrations or documents

G. PREPARING YOUR CLOSING ADDRESS

1. The purpose of your closing address is to persuade the chairman to accept your submissions regarding the case and to reject those of your employer. You want the chairman to agree that -

1.1 your view of the case is supported by the facts; and
1.2 your opponents view is either not supported at all or is less probable than yours.

2. Your planning for the closing argument should start long before the hearing. If you're not ready to give your closing statement before the hearing begins you are not ready for the hearing During the preparation, and the hearing itself if necessary, you should collect and organise the facts to support your case.

3. You need to –

3.1 identify your objectives for the hearing and the obstacles you need to overcome to achieve them;
3.2 identify the relevant and helpful facts;
3.3 anticipate your employer’s goals;
3.4 anticipate your employer’s factual material;
3.5 draft a skeleton giving structure to your closing argument. If necessary, adapt it as the hearing unfolds.

4. The employer’s representative will generally address the chairman first. You then have the opportunity of replying. After that the employer’s representative can then briefly address any new material that you may have dealt with in your address.

5. A suggested structure for your closing address is the following –
5.1 state the issues;
5.2 point out that the employer needs to make a case against you on a balance of probabilities;
5.3 list the evidence in support of your case;
5.4 deal briefly with the employer's case – eg its weakness, its lack of credibility, its lack of proof and other defects. If necessary, compare the two cases to point out why your case should be preferred;
5.5 if there are any relevant rules or legal principles that you are aware of, apply these to the facts and the verdict you are claiming;
5.6 explain the reasons for the actions of the employer - why their actions were consistent with their self-interest, announced intentions, past behaviour, lifestyle or other understandable motivations;
5.7 state clearly the decision you want the chairman to make and why he should do so.

6. Style and Tactics in your Closing Address
6.1 be natural; be yourself;
6.2 be confident and competent, which you will be if you prepare yourself well;
6.3 speak without emotion but not without some passion;
6.4 use an orderly presentation;
6.5 have a clear view of what you are going to say;
6.6 keep your strong points for the beginning and the end;
6.7 make concessions where appropriate;
6.8 deal with the other side's case briefly;
6.9 be honest, be brief.

H. ADDRESS IN MITIGATION

1. Mitigating Factors are any evidence presented regarding your character or the circumstances of the offence, which would cause the chairman to decide on a lesser sanction. You can call witnesses if you think it necessary for them to support your allegations.

Mitigating factors can be divided into the following -
1.1 Factors affecting you personally, such as
1.1.1 age;
1.1.2 personal circumstances;
1.1.3 length of service;
1.1.4 disciplinary history;
1.1.5 state of health;
1.1.6 how close to retirement;
1.1.7 financial circumstances;
1.1.8 level of education;
1.1.9 attitude to the offence (eg remorse);
1.1.10 willingness to make amends, if relevant.

1.2 Factors relating to the offence itself-
1.2.1 the circumstances surrounding the breach of the rule;
1.2.2 urged on by others ?

1.3 Factors relating to the employer
1.3.1 would the sanction imposed be consistent with previous similar cases involving other employees ?
1.3.2 your position with the employer.

2. Aggravating Circumstances

Aggravating Circumstances are those circumstances that count against you, eg the seriousness of the offence seen in the light of your length of service, your position in the company, to what degree did any element of trust exist in this employment relationship, etc.) These will be submitted to the chairman by the employer's representative

I. FINALLY

Before you hear the verdict, and perhaps even more so afterwards, you might be inclined to experience regrets the moment the hearing ends. The point you forgot to make, the question you forgot to ask, the preparation you didn't have time to perfect, can come rushing to your mind.

At least you will be able to say, “no matter the outcome, I know that I did everything I could to present my case as strongly as possible”. I hope this guide will have helped you to do so.