Disciplinary charge formulation

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Following on the 3-part article regarding the importance of rules in the workplace, this article focuses on one specific aspect that has to do with the practical application of workplace rules i.e. the formulation of disciplinary charges.

Importance of knowing what happened

To know what happened when a workplace rule has allegedly been broken is obviously of great importance. This is why Schedule 8, annexed to the Labour Relations Act (LRA) requires (amongst others) that instituting disciplinary proceedings should be preceded by an investigation into the incident. The depth and magnitude of this investigation will depend on the nature of the transgression having allegedly been committed – not all transgressions require formal investigations, but an investigation, commensurate with the gravity of the offence, remains a prerequisite.

Scope of investigation

A good starting point for this investigation would be to interview all persons who have or is likely to have first-hand knowledge of what happened, the implicated party surely to be included. After having conducted these interviews, the investigation may be broadened to study any relevant documentary evidence, circumstantial evidence and real evidence (objects or exhibits). Always endeavour to get as near as possible to the source of the information and treat subjective and hearsay evidence with extreme caution, insisting on finding corroborative evidence to validate it.

Interviewing potential witnesses

A practical way of dealing with potential witnesses is to sit them down individually and ask them to write down everything which they know first-hand about the incident in question. This can be done in handwriting or it can be typed out, but make sure that the deponent of this document, signs and dates the statement made by them.

With the produced document as basis, interview each potential witness individually, working through the statement with the deponent and jointly identifying which parts of the statement would be useful and relevant to the matter at hand (you can for instance use a highlighter to mark these parts or use the highlight function when dealing with an electronic document).

Keep these “work documents”, as signed by the various potential witnesses, for three reasons:

  • As your record of the salient aspects of the case to consult when you formulate the charge or charges;
  • As a document which the witnesses may use before giving viva voce testimony (live in person) to refresh their memories;
  • As a signed record of the witness’ testimony, which will come in handy should the witness turn hostile and change his/her testimony to the detriment of your case, unduly so. This document will prove that the witness turned hostile, allowing you to cross examine your own witness.

Note – Try avoiding converting the statement by the witness into an official statement or affidavit to be submitted as evidence. This may create the opportunity for the defence to seek out discrepancies between what is stated in the statement and what is later testified in person, suggesting that the witness is not truthful, while the apparent “discrepancy” may simply be ascribed to loss of memory due to the elapse of time. It is sufficient for the witness to only give viva voce testimony and where the witnesses’ statement is not submitted as evidence in the hearing, the other party has no right to have sight of it.

Formulating the charge

A properly formulated charge must contain basically three aspects, namely:

  • Clear categorisation

Normally, a disciplinary code would categorise offences by nature, such as theft, insubordination, unauthorised absence, assault, harassment, etc. It is advisable that the offence committed is given a “name” or at least a description to distinguish it from other offences and to avoid generality. Since the accused is still innocent until proven guilty, the charge is always presented as an allegation of misconduct.

  • Enough detail

The categorised allegation must now be unpacked, providing detail such as when? where? who? why? how? etc. pertaining to the offence the employee is charged with.

  • Degree of seriousness

Apart from knowing what he/she is charged with in a fair amount of detail, the employee must be given an idea of how serious the offence is regarded by the employer, to be able to prepare adequately for his/her defence. Obviously, one would prepare differently for an offence, which, if found guilty, could result in a dismissal, as opposed to when the likely sanction would be a mere warning.

Example: It is alleged that you misappropriated company funds entrusted to you, utilising it for private purposes.

This allegation is made with reference to the following incident/particulars:

On (date) at (time) you took R200.00 (two hundred rand), in cash, from the cash drawer assigned to you and used it to settle a personal debt with a colleague, Ms Smith.

The degree of seriousness associated with this charge bears relation to the category “very serious offences” contained in the disciplinary code, which warrants summary dismissal upon having been found guilty.

Conducting the “acid” or validity test

In order to be able to prove each sub-allegation contained in the charge, at least on a balance of probability, you need to conduct an “acid test” on the formulated charge.

Do the following: Identify all the sub-allegations within the charge.

Using the example of a charge above for illustrative purposes, the following 7 sub allegations are identifiable for purposes of the “acid test”:

It is alleged that you misappropriated company funds entrusted to you, utilising it for private purposes.

This allegation is made with reference to the following incident/particulars:

On (date) at (time) you took R200.00 (two hundred rand), in cash, from the cash drawer assigned to you and used it to settle a personal debt with a colleague, Ms Smith.

Motivating the seriousness associated with the charge, is a matter for argument during the disciplinary hearing and constitutes the viewpoint of the person bringing the charge.

Considering each of these sub-allegations in turn, ensure that you have adequate evidence to prove each of them, at least on a balance of probability, starting with proving that it was the accused, and no one else, who committed the offence, that it happened on the date and time specified in the charge, that it was R200.00 in cash (and no other amount), that the money was taken from the specified cash drawer and that it was used to pay off a personal debt of Ms Smith. Specify the frame of evidence you will present to substantiate each sub allegation, culminating in sufficiently proving the misappropriation of the money concerned.

Should you find, while conducting the “acid test”, that you initially cannot find the necessary proof for a particular sub-allegation, either omit this sub-allegation from the charge or look further for the necessary proof.

With a properly “acid tested” charge, it will be highly unlikely that the accused will be found not guilty, as charged. What however could happen, is that the decision maker may view the transgression in a less serious light than suggested, after having discounted the mitigating and aggravating circumstances argued.

Once “acid tested”, the charge can be presented formally to the accused.

Take the time to ensure that you act decisively and responsibly when instituting disciplinary action against your employees, by following the above guidelines.

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