In a time when physical distancing is required, the question arises as to whether it is possible to conduct a disciplinary enquiry virtually.
The answer is yes, provided that the parties conduct themselves honestly and the chairperson ensures a fair process.
WHAT PROCESS SHOULD THE CHAIRPERSON ADOPT TO ENSURE FAIRNESS:
- A virtual enquiry may only take place if all parties concerned has access to a virtual platform.
- It is then essential that a pre-meeting take place to ensure that connectivity is not a problem and that the venue of each participant is free of distractions and allows for a confidential process (a dog barking or baby crying may be distracting and distractions should be avoided);
- If after the pre-meeting it is clear that the employee or employer will be prejudiced as they do not have the necessary equipment or their witnesses cannot access a virtual platform, the enquiry should be postponed or a venue is to be made available;
- Employees should not abuse the lockdown period by purporting to claim they have no internet facilities. This could in fact lead to additional charges.
- The virtual platform should make use of both video and audio. Video is essential as the chairperson is to ensure that the employee and the witnesses are in fact presenting the evidence themselves without the help of others.
- The parties should be sitting further away from the screen/camera to make sure that the chairperson has a view of the room and space around the witness to ensure that the witness is giving honest evidence.
- The proceedings may be recorded and the chairperson is to inform everyone of this.
- The chairperson is to make sure that he/she sets out the rules to ensure that the process is not compromised in anyway.
- It is essential that both the employee and employer are not disadvantaged.
When adjourning for a break, the chairperson is to remind the parties that they are to turn video off and mute their mic.
Unfortunately, all the wrong things are said when the party does not realize that the other participant can hear them – as they forgot to mute their respective mic. Cases are won or lost this way!!
For professional legal assistance, contact Tracey Mouton, HR Director at Goldberg & de Villiers Inc. on 041 5019800.