It’s important for the parties to be properly prepared for the disciplinary enquiry. Central to this is for you to understand your role and objective in the enquiry, whether you are acting for the company as the complainant (often referred to as initiator), or acting in defence of yourself, as the accused employee. Shop stewards and employee representatives ought to also have a good understanding of the objectives of the participants in the enquiry. Below are non-exhaustive points dealing with the roles of some of the participants in the enquiry. A more detailed discussion around the roles of the participants will follow in later articles.
- Directs and controls the enquiry
- Keeps a record of the proceedings
- Considers arguments and evidence
- Establishes whether guilt has been proven
- Considers mitigating arguments
- Imposes or recommends sanction
- Presents arguments in an effort to prove that the accused is guilty
- Corroborates arguments with evidence
- Argues in mitigation and/or aggravation
- Presents arguments in an effort to prove that he or she is innocent
- Corroborates arguments with evidence
- Argues in mitigation if found guilty
As you can appreciate from the above, there are many more responsibilities that the participants in the enquiry have which are not mentioned here, but the above lists talk to how the disciplinary enquiry functions. Usually, the chairperson of the enquiry would take an accusatorial approach to running a disciplinary enquiry. This means that the complainant accuses the accused of having committed misconduct and the chairperson then listens to the complainant and accused arguing back and forth and then makes a decision as to which version he or she believes. Therein lies the key to performing well in either role in the enquiry – whether you are the complainant arguing to prove guilt or you are the accused arguing to prove innocence, the objective is the same, to get the chairperson to believe your version of what happened. Think about that for a second. You need to make the chairperson’s job as easy as you possibly can. That way, he or she will be far more inclined to agree with your version and find in your favour.
To do this, we strongly recommend putting together a bundle of evidence and to have a copy available for the chairperson, any witnesses that may be participating and the opposing side. The bundle would ordinarily consist of documents such as copies of the notice to attend the disciplinary enquiry, documentary evidence, witness statements, an opening statement, a copy of the company disciplinary policy (or extracts therefrom, closing statements and arguments in mitigation and/or aggravation. The bundle should also be paginated and contain a contents page (also often referred to as an index, although it appears at the front and not the back of the bundle), making it easy for the reader to go straight to specific sections to view the different contents. Put yourself in the chairperson’s shoes when preparing a bundle and think about what you would want to see and how you would want to be taken through the evidence. Compare a scenario where you are chairing a disciplinary enquiry where the complainant/accused is going into a complicated explanation of what happened without any document to support the explanation. You will have to listen to the explanation, try and understand the detail of what is being said, capture sufficient notes, ask for proof of what is being stated, etc all at the same time. This is far more difficult compared with a scenario where a party has provided a written statement that sets out the argument in chronological order. You can follow along with the statement as the party is presenting it. Where the party makes a point that he or she wants to support with documentary evidence (for example, a timesheet, a photograph, a contract of employment, etc.), he or she simply directs you to the relevant page in the bundle, you can view that evidence that is being relied upon whilst the explanation is being given or the point is being made. No need to pass documents back and forth, disrupt the enquiry by asking for copies to be made, etc.
Preparing a comprehensive bundle of evidence also focusses your mind when you are preparing for the disciplinary enquiry. By preparing a bundle of evidence, you will be able to decide what evidence can be included to support certain points, what is irrelevant and should be left out, etc. This will strengthen your case tremendously and the series of events and the evidence that you wish to present will become much clearer. It will then obviously be far easier to convince the chairperson to accept your version.
An example of the contents page for a bundle of evidence:
Remember that the more preparation you do before the disciplinary enquiry commences, the better your chances are that you will successfully convince the chairperson of your version.