Reasonable time to prepare for a misconduct hearing

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  • #7898
    Ivan Israelstam
    Keymaster

    HOW MUCH ADVANCE NOTICE MUST EMPLOYERS GIVE OF DISCIPLINARY HEARINGS?
    Schedule 8 of the LRA says that employers should give employees accused of misconduct a reasonable amount of time to prepare their responses but does not say what constitutes a reasonable preparation period. What is a reasonable preparation period?

    #7900
    Michael Bagraim
    Keymaster

    TIME ALLOWED BEFORE DISCIPLINARY HEARINGS

    The practice and regulations have always recommended 48 hours. In order to give less than that the parties would have to agree, and such agreement should preferably be in writing.

    However, 48 hours might be absolutely impractical in situations where the issues are complex, the evidence needed is varied and witnesses are unavailable.

    It is recommended that employers objectively assess the nature of the dispute and carefully analyse how much work an employee has to do in order to effectively defend him or herself.

    My experience has been that the employer would engage with the employee and or the employees representatives in order to take into account their input with regard to the timing of a disciplinary hearing.

    MICHAEL BAGRAIM
    BAGRAIMS ATTORNEYS
    20 November 2018

    #8011
    Ingrid Lewin
    Keymaster

    What I recommend to employers as a guideline is to bear in mind how much time they took to investigate and prepare for the hearing and then to allow the employee an equivalent amount of time. However, I strongly agree with Michael, that, ideally, it should be by agreement. This has a several advantages. Not only will it add weight to a chairperson’s decision to proceed if the employee and / or his / her representative fails to attend, but it will also enhance the employee’s perception that the hearing was fair. The more the employee is part of the decision regarding the logistics (the date, time, place and, wherever possible, the identity of the chairperson), the less likely a claim of procedural unfairness will succeed. If this is written into a disciplinary code, however, the final say should be given to the employer as an employee may refuse to agree in order to delay the inevitable. Including shop stewards in this decision will also help to improve industrial relations.

    #8017
    Patrick Deale
    Keymaster

    I agree with Michael and Ingrid’s opinions. If the parties can’t agree on how much time would be reasonable in a particular case, I recommend that they convene the inquiry and request the chairperson to make a ruling on the issue. This passes the responsibility to a neutral person to make an objective decision. In so doing, it lowers the risk of an procedural irregularity.

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