Employees rights during disciplinary process

Even though there can be a wealth of evidence against an employee, if a fair process is not followed, it leaves the employer open to the risk of a claim for unfair dismissal. If, following an investigation, an employer decides that there is a disciplinary case for an employee to answer, a disciplinary hearing should be arranged. The first part of preparation for the disciplinary hearing is to set a date and time to hold the disciplinary hearing and arrange a suitable, private venue. The date set for the disciplinary hearing should be in line with your disciplinary procedure, and give you and the employee sufficient time to prepare. You should also arrange for a note-taker to support you at the disciplinary hearing.

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Content:

• Disciplinary action against employee
• Discipline: What you need to know
• FAQs: How to Deal With a Disciplinary Hearing
• Build a custom email digest by following topics, people, and firms published on JD Supra.
• Disciplinary and dismissal
• 10 steps to fairly manage disciplinary issues
• 10 common disciplinary mistakes

WATCH RELATED VIDEO: HR Basics: Employee Rights

Disciplinary action against employee

Employees facing disciplinary hearings are entitled to many rights including that of the proper opportunity to prepare for the hearing in advance. This right stems from the more basic right that accused employees have to defend themselves against the charges brought. Section 1 of the LRA and section 27 of the Constitution both refer to the right of every person to fair labour practices. In addition, section of the LRA gives every employee the right not to be unfairly dismissed or to be subjected to unfair labour practices.

Schedule 8 of the LRA provides that "The employee should be entitled to a reasonable time to prepare the response.. It is an accepted principle that an accused employee needs sufficient opportunity to prepare in order for the disciplinary hearing to be fair in terms of the above legislation.

The employee? He was given notice of a disciplinary hearing and the right to be represented by an external representative. Six days before the hearing was due to begin the employee requested documents he needed for the hearing and gave notice that he would be requesting further clarity on the charges. He also requested that the hearing be postponed. The application for the required documentation and for the postponement were not granted as the university believed that the employee had been given all the documents he needed.

The employee was also not given further clarity on the charges. As a result he applied to the High Court for an order requiring the employer to provide the requested documentation and further particulars of the charges. The Court ruled that:. It is somewhat concerning that the High Court saw itself as having jurisdiction to hear this matter as the issues fell into the province of the Labour Court.

This means that parties may now have to fight issues in a court that has no specialised knowledge about labour law. Employers are also reminded that, where the employee is allowed external legal representation at the disciplinary hearing, the employer needs to be sure that the official acting as complainant initiator or prosecutor and the person chairing the hearing both have the legal expertise necessary to cope with the expertise of the employees' attorney, advocate or union official.

He may be contacted on or or on e-mail address: [email protected]. Website address: www. This article first appeared in The Star. Skip to main content. Ivan Israelstam. Search form.

Discipline: What you need to know

Amongst the myriad of practical difficulties faced by employers as a result of the Covid pandemic, managing performance and disciplinary issues remotely is a particular challenge. Huge numbers of employees are now working from home which means identifying and resolving conduct issues is more complex than before the pandemic, when most employees worked at least part of the time from the office. In this update, we consider the unique issues which arise in a home-working context and how best to manage them in each of the following jurisdictions:. At the start of the Covid pandemic, large numbers of office-based employees abruptly became home-working employees and had to quickly change their working practices. This has been a year of unprecedented challenges with many employees facing a number of different pressures aside from their normal workload. Coupled with remote working, and in particular, the lack of oversight from employers this may have contributed to a drop in performance or other issues arising such as:. Employers should make it clear that if employees do not follow their instructions during furlough leave this will be treated as a disciplinary matter.

FAQs: How to Deal With a Disciplinary Hearing

Court H. Also available on Whatsapp, Viber, Imo. Saturday - Thursday. Rowe Vs. Labour Court, Chittagong 31 DLR AD it was confirmed that absence without leave for more than ten days is a kind of misconduct and a worker may be dismissed or otherwise dealt with. In case of a Dismissal, the following procedures need to be followed as per section 24 1 of the Said Labour Act:. The said section 24 further states that:. Provided that during the period of such suspension, a worker shall be paid by his employer his subsistence allowance and other allowances, if any.

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Disciplinary hearings by employers will be fraught with problems when it comes to disciplinary steps if the process was not conducted properly. Employers have to follow the current benchmarks of employment law. A fair disciplinary hearing by the employer may save it from unfair dismissal claims. Based on our experience of seeing the types of mistakes made in disciplinary hearings by employers we have put together a best practice guide to help employers.

Disciplinary and dismissal

No of ;. No of , is revoked. Explanatory Note This note is not part of the Instrument and does not purport to be a legal interpretation. The effect of this Order is to declare that the draft Code of Practice set out in the Schedule to this Order is a Code of Practice for the purposes of the Industrial Relations Act Code of Practice on Grievance and Disciplinary Procedures 1.

10 steps to fairly manage disciplinary issues

If you have been invited to a disciplinary hearing or meeting, it is likely that your employer is concerned about your conduct, capability, sickness record or any other reason affecting your work. Your employer should have carried out a thorough, fact-finding investigation first where you have had the opportunity to put your case forward. Wherever possible, different people should deal with the investigation, disciplinary meeting and appeal to ensure that each stage is carried out as fairly and as independently as possible. This would be expected of a larger employer who has more resources. In the case of a small employer, this may not always be possible.

10 common disciplinary mistakes

There are varieties of reasons that may lead to the need for disciplinary action. Whatever the reason, you must have a fair process in place. This piece focuses on disciplinary in the workplace. The ACAS Code of Practice on disciplinary and grievance procedures recommends that employers introduce a policy outlining their commitment to fair disciplinary hearings and explaining their grievance reporting procedures to staff.

When an employer disciplines or dismisses an employee, they are legally required to follow established disciplinary and dismissal procedures. A standard disciplinary procedure must be followed in order for an employer to achieve a dismissal that is considered both fair and consistent with best practice. Failure to follow clear disciplinary and dismissal procedures may result in an unfair dismissal. To avoid this risk, it is vital that employers ensure all employees are aware of the relevant procedures in place as part of the employment contract and induction process. Even in cases of gross misconduct, a clear procedure must be followed in order to determine a fair dismissal and the employee must always be given the chance to have their say.

Where the investigation shows the employee has a case to answer, the employer should ask them to a disciplinary meeting or 'hearing'. The hearing should be held as soon as possible after the investigation, while giving reasonable time for the employee to prepare. By law, an employee or worker can bring a relevant person 'companion' with them to a disciplinary hearing. This is called 'the right to be accompanied'. The employee should tell their employer as soon as possible who they want to be their companion so arrangements can be made in good time.

In most instances, issues of employee misconduct can be dealt with informally. A quiet word and a reminder of your standards may well be enough. However, if you have an employee presenting repeated or serious misconduct issues, you should follow the disciplinary procedure set out in your employment policies. The basis of a formal disciplinary policy is the ACAS Code of Practice, which sets out the expectations for a fair process.