Employees facing disciplinary hearings are entitled to many rights including that of the proper opportunity to prepare for the hearing in advance. This right stems from the more basic right that accused employees have to defend themselves against the charges brought. The employee’s right to defend his/her case, in turn, is founded in the common under natural justice. "Audi alteram partem" is considered to be a principle of fundamental justice or equity in most legal systems. Audi alteram partem (or audiatur et altera pars) is a Latin phrase meaning "listen to the other side", or "let the other side be heard as well". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.
Section 10 of the Constitution of Botswana refers to the right of every person to fair trial. Every person in Botswana who is charged with a criminal offence has the right to a fair hearing. The Constitution provides that the hearing should be within a reasonable time and by an independent court which has been set up by law. If you are charged with a criminal offence in Botswana you have the right:
• to be presumed innocent until you are proven guilty. If you plead guilty, this means that you accept that you committed the crime;
• to be informed about the crime with which you have been charged in a language which you understand;
"The employee should be entitled to a reasonable time to prepare the response..” It is an accepted principle that an accused employee needs sufficient opportunity to prepare in order for the disciplinary hearing to be fair in terms of the above legislation. The employee right to sufficient opportunity to prepare has three facets:
• The right to sufficient time to prepare a defence: The rule of thumb is that preparation time should be at least two full working day. However, depending on the number and complexity of charges and on obstacles that may exist, this preparation period may need to be extended within reason.
• The right to fully understand the charges: Charges such as "dishonesty? or "fraud? are far too vague. Sufficient details are to be given to the employee to make preparation realistically possible.
• The right to documentation: The employer should provide the accused with the documents it intends to use in the hearing as well as other relevant documents requested by the employee.
In the case of Oliver vs Universiteit van Stellenbosch (Contemporary Labour Law Vol. 14 No. 9 April 2005) a forensic investigation report implicated Oliver in certain irregularities at the university. He was given notice of a disciplinary hearing and the right to be represented by an external representative. Six days before the hearing was due to begin the employee requested documents he needed for the hearing and gave notice that he would be requesting further clarity on the charges. He also requested that the hearing be postponed.
The application for the required documentation and for the postponement were not granted as the university believed that the employee had been given all the documents he needed. The employee was also not given further clarity on the charges. As a result he applied to the High Court for an order requiring the employer to provide the requested documentation and further particulars of the charges. The Court ruled that:
• The employee had not been given sufficient time to prepare and the university? decision not to postpone was wrong.
• It was presumptuous of the employer to decide what documents the employee would need. The employer had not argued that the requested documents were irrelevant, confidential or unavailable.
• The charges against the employee were vague.
• The employer was to provide the documents and the further particulars required by the employee.
It is somewhat concerning that the High Court saw itself as having jurisdiction to hear this matter as the issues fell into the province of the Labour Court. This means that parties may now have to fight issues in a court that has no specialised knowledge about labour law.
More importantly, this decision acts as a warning to employers in that:
• The employee right to prepare for a disciplinary hearing is sacrosanct.
• Withholding documents needlessly from the accused employee serves no useful purpose. Where the requested documents are confidential and/or irrelevant to the disciplinary charges the employer requires expert labour law advice on how to withhold such documents in a way that does not infringe the law.
• Formulating charges that are general or vague will not assist the employer cause, but will instead, be seen to be unfair. Formulating charges clearly, legally and in a manner useful both to the employee and to the employer is very difficult. This should not be done without the assistance of a labour law expert.
Employers are also reminded that, where the employee is allowed external legal representation at the disciplinary hearing, the employer needs to be sure that the official acting as complainant (initiator or prosecutor) and the person chairing the hearing both have the legal expertise necessary to cope with the expertise of the employee representative or union official.