A Practical Guide to Disciplinary Hearings

June 1st, 2012

By Michael Opperman

Cape Town: Juta Law

(2011) 1st edition

Price: R 280 (incl VAT)

296 pages (soft cover)

A Practical Guide to Disciplinary Hearings by Michael Opperman focuses on guiding the parties to a disciplinary hearing on how to effectively participate in and manage such a hearing. It was a pleasure to review a book by a writer with extensive experience, who has assisted employers and employees, and who has been an arbiter between the various role players to a labour dispute.

This book is written in plain, simple language that reinforces the idea that complicated legal concepts should be easily understood by those who are primarily involved in and who are affected by disciplinary hearings. The guide and instructions on conducting or being part of a basic disciplinary procedure are explained in an uncomplicated manner and are to the point. This is a book for legal practitioners, employers, employees and union officials engaged in disciplinary hearings who require guidance on how to conduct and/or participate in disciplinary hearings.

Some of the subjects covered include guidance on how to –

  • empower the chairperson to conduct a fair hearing and empower the employee to exercise his rights during the hearing;
  • assist management to start a disciplinary process and deal with issues of misconduct and incapacity;
  • instil a basic understanding of fair and unfair dismissals;
  • explain the roles of the various parties to the disciplinary hearing and the concepts of procedural and substantive fairness; and
  • explain the process of an appeal, manage a grievance and the procedures to follow to suspend an employee.

The various chapters deal with basic concepts such as misconduct, the purpose of a disciplinary hearing and the basic elements of hearings (including procedural and substantive fairness). The book also explains the burden of proof that is required in a disciplinary hearing.

The book contains useful templates that can be used to ensure that the correct procedures and stages are followed in a disciplinary hearing and the requirements in each stage. By using the templates, the chairperson and parties are guided through the various steps to ensure that the disciplinary procedure results in a fair hearing. The steps that need to be taken are fully described and explained in a manner that leaves no uncertainty as to what is expected in terms of the hearing.

The author chronologically sets out the various steps that need to be followed in a very simplistic way. If the practitioner adheres to these steps, particularly those contained in the various templates in the book, it would be difficult to make a mistake. By following these simple procedures as prescribed, one will ensure that the disciplinary process is both procedurally and substantially fair.

Included in the book are different pieces of legislation that are useful for referencing and explanations of the purpose of the legislation and how it governs labour relations. Only selective sections have been included and are there to assist and guide the practitioner. The many references to the relevant labour laws and Acts in the book are useful for entry level practitioners who may not be aware of the relevant case law.

It is my view that the book fulfils its main purpose in that the author succeeded in providing a handy reference book and practical guide that could be taken into a disciplinary hearing. This book will be a useful tool for any legal practitioner who has never practised labour law. I am of the opinion that the book simplifies and demystifies labour laws and their enforcement, and that it is indispensable for persons practising labour law.

Lloyd Fortuin is an attorney at Faure and Faure Inc in Paarl.

This article was first published in De Rebus in 2012 (June) DR 60.