How do employers conduct fair virtual disciplinary hearings during lockdown?

Insightful suggestions for conducting disciplinary hearings via online platforms of communication such as Zoom, Skype and Video Conferencing when employees cannot enter the workplace or have not yet begun working due to the lockdown.

Written by Fadia Arnold, Senior Associate at SchoemanLaw, for LexisNexis South Africa

Introduction

Whilst most of the South African economy has returned to work and trading under ‘advanced’ alert level 3, many employers have opted to do so whilst still working remotely if possible, as encouraged by the President and respective heads of the Department of Employment and Labour and the Department of Health. While restrictions have been eased further, certain industries still cannot trade and fully open their doors, such as casinos, leisure travel services, gyms and large parts of the events industry.

What has become prevalent in these times, as a first-time circumstance, is disciplinary action under a nationwide lockdown. The ubiquitous question asked by many is how can an employee be subjected to a disciplinary hearing when they cannot enter the workplace or have not yet begun working due to the lockdown?

This article will put forth some insightful suggestions regarding conducting disciplinary hearings via online platforms of communication such as Zoom, Skype and Video Conferencing Call.

What employers should know about conducting virtual disciplinary hearings

Employees still under complete lockdown or working remotely are not exempt from following the rules and regulations of their Employers’ codes of conduct and to adhering to their contracts of employment.

Accordingly, if an employee commits a misconduct during lockdown and disciplinary action is imminent, the employer should consider the following factors to ensure the virtual disciplinary process is conducted fairly:

• Ensure the employee received the notice to attend the virtual disciplinary hearing which may be sent via email, or even WhatsApp if the employee does not have access to email or the internet. As long as the employee confirms he or she has received the notice, the service of the notice would have been completed fairly;
• Ensure the employee has access to the platform or online forum in which the virtual disciplinary hearing will be conducted. Employers must be aware and mindful of the fact that many employees have no access to the internet or even a laptop or computer and in such circumstances it is best to strongly err on the side of caution and wait until alert level 2 or 1 of lockdown is implemented or concluded enabling those employees to return to work. Failing this, the employer may certainly face an unfair labour practice or unfair dismissal claim if the employer proceeds with a disciplinary hearing without the employee being present;
• If the employee has access to these online platforms or forums but their witnesses do not, then employers should rather wait until those witnesses can testify on a lower alert level or when lockdown is concluded completely;
• The employer still needs to comply with the Code of Good Practice in the Labour Relations Act 66 of 1995 in terms of fair disciplinary action despite the change in certain aspects of how disciplinary action is implemented, enforced and concluded;
• Nothing prevents virtual disciplinary hearings from occurring and being a fair process. Indeed, they have taken place prior to the Covid-19 pandemic, however not on the gargantuan scale as is taking place during the lockdown.

What employees should know about virtual disciplinary hearings

• Employees should know that their rights remain as is despite the fact that they may have to undergo a virtual disciplinary hearing;
• Those rights include the right to call witnesses and object to the hearing proceeding if their witnesses have no access to the online platforms canvassed herein;
• Furthermore, the employee has a right to have an interpreter present as well as to be represented by a fellow employee or trade union official or shop steward;
• Employees have a right to refer unfair labour practices to the Commission for Conciliation, Mediation and Arbitration or relevant Bargaining Council within 90 days of the date of the alleged unfair labour practice and 30 days from the date of the alleged unfair dismissal if they are of the view that the virtual disciplinary hearing was unfairly conducted or prejudicial in any way.

What the chairperson should know about virtual disciplinary hearings

• In these unprecedented times, the chairperson appointed to conduct a virtual disciplinary hearing should take his or her position with even more earnestness than they usually would by ensuring that the disciplinary hearing can fairly be conducted and concluded in a virtual arena without any prejudice to the employer or the employee;

• The chairperson should ensure that both the employer and employee are able to utilize online platforms effectively and that their comparative ability in that regard is equal, failing which the chairperson should rule that the disciplinary hearing be postponed until the employer, employee and their witnesses, representatives and evidence can be available fairly and in adherence with the Code of Good Practice in respect of Disciplinary Hearings;

• The chairperson appointed should also assess the practicalities of the evidence bundle or documents to be exchanged between employer and employee to be referred to during the virtual disciplinary hearing in that if a large amount of documentation or evidence of another form is to be led, all parties to the hearing need to have access to same, failing which as stated before, the employer may be looking at various claims based on unfair procedure.

Conclusion

Employers should be cautioned in conducting virtual hearings where employees may be prejudiced in one or other of the aforementioned manners, and similarly employees should not abuse the lockdown period by purporting to claim they have no internet or mobile facilities. These claims should be investigated and if the employer wishes to conduct the virtual disciplinary hearing during lockdown then the employer should make the necessary arrangements to ensure the employee, their representative and their witnesses are set up adequately with conference call equipment.

Fadia Arnold