The chairperson of a disciplinary enquiry is tasked with establishing whether the accused is guilty of the misconduct with which he or she is charged and, if found guilty, is tasked with imposing a sanction appropriate in the circumstances. In criminal proceedings, this decision is made in two distinct phases. This separation, the courts have said, is not an absolute requirement, provided that the overall result of the disciplinary action taken is fair. However, it is our experience that separating these two stages simplifies the process and ensures fairness and is therefore strongly recommended. The reason for this is because if the chairperson of the disciplinary enquiry requests the disciplinary record of the accused before pronouncing on the accused’s guilt, the accused may well be given the impression that the chairperson has pre-empted the verdict and has therefore been unfair on him or her. They may think, “why does the chairperson of the disciplinary enquiry need to know about my disciplinary record before he or she has even decided whether I am guilty?”. Remember that past disciplinary record has no bearing on the guilt of the accused. It has bearing on the sanction. Since the sanction is only required to be imposed if the accused is found guilty, there is no reason to call for this information before the decision on guilt has been made. We therefore advise that the disciplinary decision is made as follows:
Firstly, the guilt of the accused is established on the evidence presented during the course of the disciplinary enquiry. Then, if found guilty on a balance of probabilities, the accused’s disciplinary record and other factors (discussed below) become relevant. Secondly, assuming that the accused has been found guilty, the chairperson should then call for arguments in mitigation and aggravation, or may ask for mitigating and aggravating circumstances.
Mitigating circumstances are circumstances that would be put forward in order to convince the chairperson to be lenient and lessen the severity of the sanction. By contrast, aggravating circumstances are circumstances which exacerbate the offence and may convince the chairperson to impose a harsher sanction. It is a common mistake for the complainant in the disciplinary enquiry to believe that he or she should only argue in aggravation. This is not the case – it is perfectly acceptable for the complainant to argue in mitigation or, indeed, both mitigation and aggravation, in order to provide the chairperson with all of the circumstances required to make a fair decision.
Mitigating circumstances may include the following (in no order of priority):
- Personal circumstances:
- Marital status;
- Whether the accused’s spouse is employed;
- Children and ages of the children;
- Past disciplinary record;
- Whether the accused is remorseful or not;
- Years of service;
- Position in the company;
- Level of responsibility;
- The nature of the job and tasks undertaken by the employee;
- The potential impact of the sanction on the workforce;
- The prospects of rehabilitation of the accused;
- Seriousness of the misconduct in light of the above.
Aggravating circumstances may include:
- Damages or losses caused by the accused’s actions;
- The impact that the accused’s actions have had on the employer/employee relationship;
- Any impact on the health and safety of other employees;
- Previous disciplinary record;
- Seniority of the employee;
- Lack of remorse;
- What effect the accused’s actions have had on the relationship.
As you will see, certain circumstances could be viewed as being either an aggravating circumstance or a mitigating one. For example, the nature of the job may be relevant for an accused who has been charged with sleeping on duty. A receptionist or administrator that falls asleep at their desk may be treated more leniently than a security guard whose alertness is of paramount importance. Or, considering length of service, a longer serving employee may be treated more leniently than an employee who has recently joined the company, etc.
All circumstances, whether mitigating or aggravating, must be explained and rationalised. Don’t forget to do this, particularly if an outside chairperson is presiding over the enquiry – he or she will not know whether the accused’s actions have irreparably destroyed the employment relationship, for example, unless you submit and explain whether it has, and why. Finally, if the parties wish to be provided with more time once a guilty verdict has been given to consider and submit arguments in mitigation and aggravation, this should be allowed, as the fairest sanction is the one where all relevant factors have been considered.