The chairperson must decide, based on the evidence presented, whether to find the employee guilty or not guilty. Does the failure to allow an employee to be accompanied during a disciplinary hearing in itself render the dismissal substantively unfair, or if not substantively unfair, procedurally so? There are 6 requirements for a disciplinary hearing to be fair, otherwise an employee can accuse the … Accordingly, Mrs Smith … The Labour Relations Act (LRA),provides that "every employee has the right not to be- (a) unfairly dismissed; and Section 188 of the LRA deems a dismissal to be unfair if the employer fails to prove- (a) that the reason for the dismissal is a fair reason; and (b) that the dismissal was effected in … Summary: Review – disciplinary hearing in breach of collective agreement – LRA s 33A --- proceedings null and void. Under the Employment Relations Act 1999, if the worker requests a postponement to accommodate a companion who is … JUDGMENT STEENKAMP J Introduction [1] A disciplinary hearing is held outside the time limits prescribed by collective agreement. However, while the Labour Court agreed that the dismissal was substantively fair, it found the dismissal to be procedurally unfair. Further, the employer reached conclusions and views about the employee based on allegations that were not put to her. procedurally unfair on the following basis: “3.3 The next question to deal with is that of procedure. 21 September 2020 A … Refusal to postpone a disciplinary hearing was “procedurally unfair” Oct 2018 . When employers are reliant on the evidence of customers or other external witnesses, they must bear in … S brought an unfair dismissal claim and the employment tribunal held that although her employer had shown a potentially fair reason for her dismissal, its decision to dismiss her was procedurally unfair because of its refusal to postpone the disciplinary hearing. Procedurally fair disciplinary hearings JOBLAW. The employer, therefore, had the right to proceed with the hearing in the employee’s absence and the dismissal was not unfair. • ‘An arbitrator may find that a dismissal is procedurally unfair but award no compensation because the procedural irregularity was minor and did not prejudice or inconvenience the employee’ Here are some pertinent extracts from the new CCMA Conduct Guidelines relating specifically to situations where there may not have been complete or proper compliance with pre-dismissal procedures. The Employment Appeals Tribunal decision. Under these circumstances, the disciplinary hearing was procedurally unfair: a chairperson cannot be allowed to adjudicate factual issues which he had witnessed. Reasons why the hearing was unfair could be as follow: • The person chairing the hearing was biased • The employee was not given a fair chance to have an representative of his/her choice due to the fact that the company argues having external representation will “set a precedent ” • … If the hearing is not fair, the employee can refer an unfair dismissal dispute to the CCMA or appropriate Bargaining Council. The right to a hearing in disciplinary matters was long fought for in the workers’ struggle. 2. Should you fail to give your employee adequate time to prepare, this will be considered procedurally unfair. The Labour Court reviewed and set aside the award on the basis that the arbitrator failed … procedurally unfair. The dismissal was found to be procedurally fair because the proof of the employee’s reason for his failure to attend the disciplinary hearing and the evidence, therefore, were found to be invalid. The employer's disciplinary procedure only provided an employee with the right to be represented by a colleague. She referred an unfair … Firstly, in his reasons for his finding that the dismissal was procedurally unfair the arbitrator states that no hearing was held prior to the sanction being changed. This is such an elementary rule, according to the commissioner, that it is difficult to understand how the employer could have stooped below this accepted norm. The employee was thus awarded three months' … The basics of procedural fairness however are that the employee should know the case against them, as well as that dismissal is a potential outcome of the process, they should be allowed to make representations, be accompanied at disciplinary meetings … Procedural fairness includes following a disciplinary policy and the ACAS Code of Practice (which is hopefully mirrored by the employer’s policy). Secondly, the arbitrator gave no reasons for his finding that the dismissal was substantively unfair. Due to the scantiness of the information concerning the charges that had been given to the accused employee the Commissioner ruled that the employee’s dismissal was … The employer appealed arguing that, under the right to be accompanied rules, it did not have to accept a postponement which … The purpose of a disciplinary hearing is to afford an employee the opportunity to state their case in response to allegations made by the employer ahead of seeking dismissal. While it may not be regarded as procedurally unfair to admit hearsay evidence in disciplinary proceedings, the standard with regard to the admissibility of hearsay evidence in arbitration proceedings is much higher. … Therefore, the dismissal was procedurally unfair. Share: Any worker required to attend a disciplinary or grievance hearing may be accompanied by a companion, being a colleague or trade union representative. Employer beware: unfair disciplinary hearing . She contended firstly, that the Department has abandoned the disciplinary process after her appeal and secondly, that the dismissal was substantively and procedurally unfair. The commissioner ultimately found that the dismissal was substantively fair, but that the amendment of the charges after evidence was led rendered the disciplinary enquiry procedurally defective. Wednesday 10th October 2018 . Either way, guilt still has to be proven on a balance of probabilities. The refusal to grant an adjournment resulted in a penalty hearing that was procedurally … Does the failure to allow an employee to be accompanied during a disciplinary hearing in itself render the dismissal substantively unfair, or if not substantively unfair, procedurally so? Heading: Ivan Israelstam; Saturday, May 21, 2011 - 2:00am. Does that make it null and void? That is whether or not the dismissal was effected in accordance with a fair procedure. 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