Why should we say “disciplinary enquiry” rather than “disciplinary hearing”?

I have been asked this question a couple of times this last week.  Although the term “disciplinary hearing” remains in common use in business, the legal fraternity, the CCMA and even the Courts, there is also a growing movement to dispense with terms of a criminal orientation.  After all, employees are simply going through a process to deal with misconduct in the workplace, dealt with by business people in a business environment; it is not, by any stretch of the imagination, a legalistic criminal process and neither are those people trained juristic individuals.

But, as an example, the words used by the ANC, the media, the public, would have suggested that Julius Malema had been involved in nefarious criminal activities.  In fact he had merely been called to account by a political party “for statements that bring the party into disrepute”.  I do not challenge the seriousness of the misconduct, rather the way in which he was labelled by the media and others.

The courts have suggested that the use of words such as “guilty”, “verdict”, “charge”, “accused”, “prosecutor”, “hearing” have no place in labour disputes. One Justice commented: 

“Once again, I use the language as contained in the disciplinary code.   I do not associate myself with the unnecessary criminalisation of misconduct in the workplace by using the language of “charges”, “offences” and findings of “guilt” or otherwise”.  NUM v CCMA (Sedibeng Diamond Mine) Case C545/09 dated 22.10.2010.

The approach (in respect of language) we have now is still largely based on the days of the Industrial Court, grounded upon the Labour Relations Act of 1956, which applied and demanded a process that was very similar to that seen in the criminal courts.  We have moved on since then with a new Constitution and a new Labour Relations Act; the rules of the Industrial Court were appropriate in that context but no longer.

Employees have a right to be treated with dignity.  It is arguable that treating an employee in a matter of misconduct, or incapacity, with words such as discussed above, removes that dignity. And that could open a brand new can of worms!

For those interested in further research I suggest you read Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833; (2006) 27 ILJ 1644 (LC), a ground-breaking judgement by Andre van Niekerk.

Your comments and views are welcome.  They will allow me to improve my service.