Our previous article was about the Guidelines to suspend an employee for misconduct. In that article we undertook to discuss in this article the items or elements that a notice to attend a disciplinary enquiry must contain. This article will therefore focus on those items.
If an employee commits misconduct, the employer cannot just dismiss him. The employer needs to first hold a disciplinary hearing/enquiry. The first step in the process is that the employee needs to be informed that he (where the male is used, it also implies female) has to attend a disciplinary enquiry or, in other words, the employee must be given a notice to attend. What does the employee need to be notified?
Important items in a notice to attend a disciplinary enquiry
The notice needs to inform the employee about the following:
1. The allegations (charges) against the employee
These need to be written in a simple manner to ensure that the employee understands the allegations against him. It must specify the when, where, who and how. This will assist the employee to properly prepare his defence against the allegations.
2. The rights of the employee
The employee has certain rights that need to be highlighted in the notice. They are as follow:
(a) To attend the enquiry;
(b) To be represented or assisted by a colleague or shop steward;
(c) To an interpreter/translator;
(d) To present his case, lead all relevant evidence;
(e) To call witnesses in support of his defence;
(f) To cross examine any person called upon as witness in support of the allegations; and
(g) Access to all documentation to be produced in evidence.
3. The date, time and venue
This will ensure that the accused employee knows the date on which the enquiry will take place, the time that it will take place and where (the venue) it will take place.
4. The misconduct may result in dismissal
This will inform the employee that the misconduct is of a serious nature and if found guilty, it may result in his dismissal.
This is an important. It must be explained to the employee what will happen if he does not attend for whatever reason. The employee needs to be informed that if the he fails or refuse to attend the enquiry and fails to timeously provide an acceptable and legitimate reason for his absence, the enquiry may be conducted in his absence and finalised without him being present. Such failure or refusal will be interpreted to imply that he has waived his right to an enquiry.
6. Name of chairperson
It is advisable to inform the employee who will preside over the proceedings. Whether it is an internal or external person.
7. Date of the notice
It is advisable to show the date on which the notice has been formulated. This will indicate how long after the incident or misconduct has been committed, action was taken by the employer.
8. Acknowledgement of receipt
The employee must sign receipt of the notice. It is advisable that this is done in the presence of a witness who must also sign to confirm that the notice has been handed and explained to the employee.
It is important to understand that the notice to attend a disciplinary enquiry is part of the disciplinary process and if it is not done correctly and not contain the above mentioned elements, it may result in a possible claim of procedural unfairness.