By now employers should know that getting it wrong when it comes to dealing with a disciplinary matter can prove to be a costly mistake.
In the existing technological climate and in the context of the COVID-19 pandemic, specific questions are being asked about conducting disciplinary hearings virtually and whether disciplinary processes can and should be conducted remotely. Our view is that if the true function of the disciplinary hearing is adhered to, the procedure will be fair. The true function of a disciplinary hearing is to ensure that employees have an opportunity to lead evidence in rebuttal of the charges and to challenge the evidence of the employer before a decision is taken.
Whilst remote working makes face-to-face meetings unlikely there is no reason why disciplinary hearings and other workplace procedures cannot be handled remotely with attendees joining over Star-leaf, Microsoft Teams, Zoom, Skype, and other teleconference software. In this way, the required safety measures are adhered to and cost can be kept to a minimum.
Our courts have embraced the use of technology in the past. In the case of MTWU obo Nonyane v Star Express CC, the Arbitrator had to make a ruling on the fairness of a disciplinary hearing that was conducted via Skype. The Arbitrator ruled as follows:-
“The minute does not deal with the issue of Skype at all, but both the applicant and Tsoa raised it as an issue. I would however find that Skype would be acceptable for an inquiry of this nature as it is a video call.”
In Simmers v Campbell Scientific Africa (C751/13) the question was clarified in an arbitration setting. In this regard, the Labour Court held that the commissioner’s decision to allow evidence via a Skype telephone link was not a reviewable irregularity. It conforms with the provisions of s 138(1) of the LRA.
In light of the above, we recommend using a secure teleconference platform to conduct disciplinary hearings remotely. Video conferencing is highly recommended as opposed to audio calls because it allows the chairperson to observe the demeanor of witnesses which may be important in certain cases.