Observing the principles of fairness during virtual hearings

Since the introduction of lockdown, employers and employees have found themselves in an environment of unprecedented change and uncertainty.

Instead of getting up on the morning of Friday, 27 March 2020 to go to work, large numbers of employers and employees were wondering how they could work without going to the workplace.

Employers who had moved with the times were ready to bypass the confines of lockdown level 5 by utilising one of the many options provided by the internet, and were therefore able to keep much of their businesses on track.

Apart from getting the job done, many employers had to deal with the unfinished business of disciplining some employee who was now not at the workplace, but at home through no fault of his own. They were faced with the option of waiting until everyone was back at the workplace at an unknown future date, or finalising grievance and disciplinary processes remotely where possible.

It is a fact of life that where there is a workplace, there is often some form of misconduct.

Unsurprisingly some employees, who are presently working from home, commit misconduct such as not working all the hours as required, not giving full effect to instructions, or by, for example, bringing the employer’s good name into disrepute on social media.

Whether the misconduct was committed prior to or during lockdown, the question is the same:  Can an employer take disciplinary steps against an employee during the lockdown period?

The most important yardstick during a disciplinary process is that of fairness. The employer must not only have a fair reason for taking disciplinary steps, but must also follow a fair procedure. This means that the employee must know what the allegations against him are, and be given the opportunity to defend himself, whereafter he is entitled to a fair, informed and objective finding.

The Labour Court held in the matter of Avril Elizabeth Home for the Mentally Handicapped v CCMA that a disciplinary hearing should not duplicate the process followed during a trial in a criminal court.

In its most basic form a disciplinary hearing is an internal and informal process, and can be finalised following a discussion between the employer and the employee.

A more formal process may be required in instances of serious misconduct, such as when the employee faces allegations of, for example, fraud or sexual harassment.  These rather complex hearings are usually chaired by an experienced labour lawyer – witnesses are called and documentary evidence is often relied upon.

Whether it is an informal or a formal process, the essential elements, such as the question as to whether there was a known rule that was breached, remain the same and the outcome is always determined on a balance of probabilities.

In both instances the hearing can be conducted virtually via videoconferencing during lockdown.

The panellists at Aequitate have been conducting disciplinary hearings on virtual platforms such as Zoom and Microsoft Team since the beginning of lockdown, and can categorically state that it is as easy to be fair and objective in a virtual space as it is face-to-face.