A common misconception, particularly amongst staff, is that an appeal hearing is simply another disciplinary enquiry, the purpose of which is to see if another chairperson arrives at the same conclusion as the original one. Whilst an appeal hearing can take the form of a trial de novo in certain circumstances, there are distinct differences, which we will explore below.
The first major difference between a disciplinary enquiry and an appeal hearing is that obviously, it is the employee (known in an appeal process as the appellant) who will lodge the appeal, whereas it is the employer’s prerogative to initiate disciplinary action. However, the appellant doesn’t simply appeal against disciplinary action – he or she should be required to set out the grounds for the appeal in the application process and indicate whether it is the guilty verdict that is being appealed or the severity of the sanction. He or she must also indicate whether there will be any new evidence that will be presented in the appeal hearing. The appellant would be well advised to prepare to offer an explanation as to why any new evidence that he or she wishes to introduce was not presented in the disciplinary enquiry.
The second difference between a disciplinary enquiry and an appeal hearing is that at a disciplinary chairperson would not have sight of the bundle of evidence prior to the commencement of the disciplinary enquiry. By contrast, the bundle of documents that was used in the disciplinary enquiry should ideally be handed to the appeal chairperson before the appeal hearing begins, so that he or she may familiarise him or herself beforehand. Similarly, any other evidence, such as audio or video recordings should also be handed to the chairperson for perusal and consideration before the appeal hearing commences. A copy of the minutes of the disciplinary enquiry, together with the report compiled by the disciplinary chairperson and any other relevant documentation, such as the paperwork confirming the decision taken by the disciplinary chairperson and the paperwork confirming the sanction imposed should also be given to the appeal chairperson before time.
By allowing the chairperson of the appeal hearing to consider all of the above, he or she will be in a far better position to be able to deal expeditiously with the grounds of the appeal. The grounds for the appeal and the assessment of the documentation and other evidence presented during the disciplinary enquiry will determine the format of the appeal. For example, if the appellant is appealing the severity of the sanction and not the guilty verdict itself, then it is not necessary to hear evidence from witnesses that testified at the disciplinary enquiry, as the appellants guilt is not being brought into question.
If any new evidence is to be introduced by the appellant, an explanation as to why this was not done ought to be given at the commencement of the appeal hearing. Simply omitting to include the evidence in the disciplinary enquiry ought not to be accepted as a reason to continue with the appeal process, as this would amount to the employee having a second bite at the cherry simply because he or she was ill prepared in the first instance and this should be discouraged. However, if an acceptable reason is offered as to why the evidence should be allowed in the appeal hearing, then it would be dealt with in much the same way as it would in a disciplinary enquiry. For example, if the new evidence is the testimony of an eye-witness, the appellant will be allowed to lead examination-in-chief and then the company representative, usually the same person who acted as the complainant/initiator in the disciplinary enquiry will be allowed to cross examine the witness.
The chairperson of the appeal hearing, after considering all of the evidence and arguments, must then apply his or her mind and decide whether or not a finding of guilty was correct, if it is the guilty verdict that is being appealed, or he or she must decide on the appropriateness of the sanction. It is our recommendation that the appeal chairperson should, depending on their view, uphold the original sanction, or reverse the sanction and issue a lesser one. If the appellant realises that a more severe sanction may result from an appeal, then he or she would probably not risk appealing in the first place! The company would want employees to make use of the internal processes as much as possible and so by ensuring that there is no risk in appealing, employees would be encouraged to lodge appeals if they are unsatisfied with disciplinary action and can properly motivate why this is the case.