Dealing with disciplinary enquiries can be a time-consuming and costly process. It is not uncommon for these enquiries to drag on for six months or longer. In certain situations, they could even reach the Commission for Conciliation, Mediation and Arbitration ("CCMA") after dragging on for more than a year. These lengthy disciplinary enquiries often become bogged down in technical, procedural and practical issues ranging from:

  • the availability of representatives and witnesses;
  • numerous interlocutory applications;
  • days of examining witnesses;
  • parties not being prepared; and
  • postponements.

Lengthy disciplinary enquiries are often detrimental to the employer and the employee. The employee is often placed on precautionary suspension during these enquiries. This means that the employer does not benefit from the employee's services during the process, while at the same time remunerating the employee for significant periods. Extended disciplinary enquiries can unnecessarily prolong a stressful experience for an employee and impact the status of the employee in the workplace. It may also impact an employee's standing and reputation outside the workplace. It is therefore in the best interests of both the employer and employee to ensure disciplinary enquiries are run as expeditiously as possible.

That said, disciplinary enquiries must be procedurally fair. To ensure procedural fairness, many employers have adopted comprehensive policies, prescribing that disciplinary enquiries must be conducted in a manner akin to a court process. This is a major contributing factor to disciplinary enquiries becoming prolonged by the technical, procedural and practical issues mentioned above.

This does not have to be the case. All that is required of employers to hold a procedurally fair disciplinary enquiry, according to Schedule 8 of the Code of Good Practice: Dismissal ("the Code"), is that the employer must: "conduct an investigation to determine whether there are grounds for dismissal". The Code specifically states that this does not need to be a formal enquiry. The entitlements of the employee are simply that they need to be informed of the allegations against them and should be granted reasonable time to prepare and respond, with the assistance of a fellow employee or trade union representative (such as a shop steward).

The Code does not require the court-like procedures found in many policies. The Code allows for inquisitorial enquiries where the employer simply investigates the allegations, and provides the employee with an opportunity to state their case to the employer's investigator.

The Code also allows for the enquiry to take place in writing, with the employee simply being informed of the allegations, and being provided with an opportunity to respond in writing. This process is particularly suited for matters where the facts on which an allegation of misconduct is based are not in dispute the CCMA Guidelines on Misconduct Arbitrations, which states that the opportunity of the employee to respond to the allegations can be in writing, provided that an employer does not have a disciplinary procedure in place that prescribes otherwise.

Running disciplinary enquiries informally as envisaged by the Code will in all likelihood minimise the technical, procedural and practical hurdles which prolong disciplinary enquiries. However, to benefit from the informal nature by which disciplinary enquiries can be run, employers need to ensure their disciplinary procedures allow for it, and that proper management of unions and employees is implemented before amending those procedures.

Should employers continue to keep policies in place that require disciplinary enquiries to run in a manner similar to a court hearing, then they will continue to face unnecessarily lengthy enquiries to the detriment of themselves and the accused employees. Should an employer wish to avoid this problem it will have to reconsider and reformulate its policies to ensure that when enquiries take place, they can be run expeditiously, fairly and to the benefit of all parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.