| 7.1.1 |
The employee must be given notice at least seven working days before the date of the hearing. |
| 7.1.2 |
The employee must sign receipt of the notice. If the employee refuses to sign receipt of the notice, it must be given to the employee in the presence of a fellow employee who can sign in confirmation that the notice was conveyed to the employee. |
| 7.1.3 |
The written notice of the disciplinary meeting must use the form of Annexure D, and provide: |
| 7.1.3.1 |
A clear description of the allegations of misconduct and the main evidence on which the employer will rely; |
| 7.1.3.2 |
Details of the time, place and venue of the hearing; and |
| 7.1.3.3 |
Information on the rights of the employee to representation by a fellow employee or a representative or officials of a recognized trade union, and to bring witnesses to the hearing; |
| 7.1.3.4 |
A summary of the investigation report and statements to be used by the employer. |
NB: SUMMARY of the investigation report should contain the following:
the facts established, a conclusion and a decision.
NNB: Finalization of the the investigation shall be the date on which the delegated authority takes the decision whether to charge or not to charge the employee.
| 7.2 |
Precautionary suspension |
| 7.2.1 |
The employer may suspend an employee on full pay or transfer the employee if |
| 7.2.1.1 |
The employee is alleged to have committed a serious offence; and |
| 7.2.1.2 |
The employer believes that the presence of an employee at the workplace might jeopardize any investigation into the alleged misconduct, or endanger the well being or safety of any person or state property. |
| 7.2.2 |
A suspension of this kind is a precautionary measure that does not constitute a judgment. An employee shall not be suspended without salary or normal benefits. Benefits shall not include overtime payment or danger and/or special danger allowances. |
| 7.2.3 |
If an employee is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 calendar days, depending on the complexity of the matter and the length of the investigation. If after 60 days of suspension the disciplinary hearing has not been instituted the suspended employee may return to work. Depending on the seriousness of the alleged misconduct, the Employer may extend the suspension for a further 30 days. If after such period the disciplinary hearing has not been instituted the employee must return to work. If the disciplinary hearing has been instituted the employer shall determine when the employer can return to work. |
| 7.3 |
Conducting the disciplinary hearing |
| 7.3.1 |
The disciplinary hearing must be held within ten working days after the notice referred to in paragraph 7 .1.1 is delivered to the employee. |
| 7.3.2 |
The formal disciplinary hearing should be finalized within a period of 60 days from the date of finalization of the investigation. If the time frame cannot be met, the parties involved must be informed accordingly with reasons for the delay. If the employer, without good reason, fails to institute disciplinary proceedings within a period of 4 months after completion of the investigation, disciplinary action shall fall away. |
| 7.3.3 |
The Chair of the hearing must be appointed by the employer and be an employee on a higher grade than the alleged transgressor. |
| 7.3.4 |
The Initiator, if appointed from the same Management Area, must be of equal or higher rank than the alleged transgressor. If appointed from another Management Area, the Initiator need not be of equal or higher rank than the alleged transgressor, but competency shall be the determining factor. |
| 7.3.5 |
The employer and the employee charged with misconduct may agree that the disciplinary hearing will be chaired by an arbitrator from the relevant Sectoral Bargaining Council appointed by the council. The decision of the arbitrator will be final and binding and only open to review in terms of the Labour Relations Act, 1995. All the provisions applicable to disciplinary hearings in terms of this Code will apply for purposes of these hearings. The Employer will be responsible to pay the costs of the arbitrator. |
| 7.3.6 |
If the employee wishes, she or he may be represented in the hearing by a fellow employee or a representative of a recognized trade union. |
| 7.3.7 |
If necessary, an interpreter may attend the hearing. |
| 7.3.8 |
In a disciplinary hearing, neither the employer nor the employee may be represented by a legal practitioner, unless - |
| 7.3.8.1 |
The employee is a legal practitioner or the representative of the employer is a legal practitioner and the direct supervisor of the employee charged with misconduct; or |
| 7.3.8.2 |
The disciplinary hearing is conducted in terms of paragraph 7.3.5. For the purposes of this agreement, a legal practitioner is defined as a person who is admitted to practice as an advocate or an attorney in South Africa. |
| 7.3.9 |
If the employee fails to attend the hearing and the chair concludes that the employee did not have a valid reason, the hearing may continue in the employee's absence. |
| 7.3.10 |
The chair must keep a record of the notice of the disciplinary hearing and the proceedings of the meeting. |
| 7.3.11 |
The chair will read the notice for the record and start the hearing. |
| 7.3.12 |
The representative of the employer will lead evidence on the conduct giving rise to the hearing. The employee or the employee's representative may question any witness introduced by the representative of the employer. |
| 7.3.13 |
The employee will be given an opportunity to lead evidence. The representative of the employer may question the witnesses. |
| 7.3.14 |
The chair may ask any witness questions for clarification. |
| 7.3.15 |
If the chair decides that the employee has committed misconduct, the chair must inform the employee of the finding and the reasons for it. |
| 7.3.16 |
Before deciding on a sanction, the chair must give the employee an opportunity to present relevant circumstances in mitigation. The representative of the employer may also present aggravating circumstances. |
| 7.3.17 |
The chair must communicate the final outcome of the hearing to the employee within five working days after the conclusion of the disciplinary enquiry, and the outcome must be recorded on the employee's personal file I G102 and PERSAL. |
| 7.4.1. |
If the chair finds an employee has committed misconduct, the chair must pronounce a sanction (within the period referred to in clause 7.3.17), depending on the nature of the case and the seriousness of the misconduct, the employee's previous record and any mitigating or aggravating circumstances. Sanctions consist of: |
| 7.4.1.3. |
A written warning valid for six months; |
| 7.4.1.4. |
A final written warning valid for six months; |
| 7.4.1.5. |
Suspension without pay, for no longer than three months; |
| 7.4.1.6. |
Demotion by a post level as an alternative to dismissal, such demotion shall be consented to by the employee |
(7 4.1.5 and 7.4.1.6 as alternatives to dismissal)
| 7.4.2 |
The employer shall not implement the sanction during an appeal by the employee. |
| 7.4.3 |
The chairperson must communicate the final outcome of the hearing to the employee within five (5) working days after the conclusion of the disciplinary hearing, and the outcome must be recorded on the personal file (and the relevant Registration file and personal records must be updated) of the employee. |
Public Service Commission Act, 1997
