Communication, ultimately, is not what we say, but what they understand.
Kenneth Cloke and Joan Goldsmith
This is the second in our series of three articles designed to improve workplace disciplinary inquiry preparation, presentation and outcomes. Disciplinary inquiries are specialized forms of workplace conflict that, mismanaged in the smallest instance, can cause tremendous losses of time, productivity and internal cohesion, with an increase in cost, risk and other workplace conflict causes. The first article (on the duties of and strategies available to the inquiry chairperson can be accessed at https://www.conflict-conversations.co.za/conversations/choosing-the-right-chairperson-disciplinary-inquiries-article-1-of-3-necessary-upgrades-for-employers
Introduction
My national consulting work with workplace conflict has shown me over the years that by far the majority of workplace disciplinary hearings, as they are generally referred to, are adversarial processes run on outdated processes that often inadvertently simply increase the existing workplace conflict fault lines, create new or exacerbate existing unresolved conflicts, and more often than not increase the employer’s risk and cost, calculated on a range of criteria not always monitored or understood.
Disciplinary hearings are, far too often, run as last-ditch processes and as compliance exercises, with everyone, including outside consultants ticking minimum boxes to work towards a pre-existing decision and outcome. The processes are often hostile, resented by all, and cobbled together from outdated processes and documentation, incomplete advice and a disregard for the overall best interests of the employer or the affected employee(s).
Improving, to a considerable extent, the internal disciplinary inquiry process of an employer, is therefore much more than a cosmetic exercise, it is an operational upgrade designed specifically to lead to improved workplace conflict management resolution, management or transformation, it hands senior management a measurable tool to control a modern and crucial dashboard of operational dynamics, and it assists the employer’s evidence leader (aka initiator, prosecutor) and the involved employee(s) to present fair, accurate and orderly evidence that is in the best interests of all concerned. We then look at a few suggested workplace conflict upgrades for the evidence leader and the employee, as separate categories.
A: THE EVIDENCE LEADER
Introduction and background
The evidence leader has an undervalued role in the process. Dispute resolution forums such as the CCMA, bargaining councils and the Labour Courts have high expectations of the evidence placed before an inquiry chairperson. An experienced and knowledgeable chairperson shares those high expectations, as they rely on the integrity and accuracy of that evidence.
Decisions need to be made based on the evidence presented. The modern evidence leader should therefore make no mistake about the importance of their role.
Preparation
Internal hearings are often dependent on initial takes on evidence. It becomes increasingly difficult, as the process develops, to change or add to specific evidence. Statements made, versions cast in the stone of affidavits or written statements, the specific wording of charge sheets, consultations attended to or avoided, computer and other digital records accessed and properly stored, evidence chains and their retention, all of this and more fall on the shoulders of the evidence leader and her team. Do not assume that evidence will be accepted, common cause or pleaded guilty to. Prepare and be confident, at a sufficient level, of probable success. Do not file a disciplinary notice and then start searching for evidence.
Spend quality time in drafting the charge sheet, as this very soon becomes the boundaries of your case, and amendments or additions are not always prudent or allowed. Give yourself another day, resist the rush to resolution. If possible, let a legally trained and experienced person cast an eye over your final draft of the charge sheet before you serve it. Be crystal clear on what evidence and what witnesses you need to present, in what sequence.
Ensure that witnesses are available for your intended scheduled date(s). If possible, check with the employee affected and the intended chairperson as to such date(s). Prepare an accurate, numbered, indexed bundle of documents and other evidence for your evidence presentation, and circulate this to at least the employee (either simultaneously with the service of the charge sheet, or very soon thereafter).
Try to prevent delays in the sequence and structuring of how you run this part of the inquiry. You will most probably be blamed for late filing, incomplete bundles and insufficient time for preparation by the employee and his representative, so try to remove all and any legitimate criticism in that regard.
Never fabricate evidence, or hide evidence prejudicial to your case. Where need be, divulge the existence of such evidence to the employee or his representative. This is an important legal obligation, with serious consequences for you and the employer, if not properly managed. Remember that your presentation is not limited to the employer’s case.
Experience and training will teach you how to anticipate the employee’s case, their evidence, their witnesses, their arguments and case law. Know what you need to prove the elements of the charge(s) involved. Our case law is littered with good cases run aground because this aspect was not properly presented. Know who bears what onus, consider and then implement the best sequence of presenting your evidence.
When you are fully prepared, and only then, serve your charge sheet. Make sure that this is done respectfully, and that it is properly witnessed. Between the service of the charge sheet and the inquiry itself there is often a brief period that we can include under preparation, a period that may include contact with the employee or their representative, the exchange of information, rescheduling, questions (usually in writing) on the charges themselves, employee bundles of documents, and (most helpful) a written list of background facts and / or legal issues that the parties have agreed on during a formal or informal pre-hearing meeting.
Depending on the complexity of the charges, the seniority of the employee involved and so on, these may be a part of your duties, so ensure that you get early and comprehensive training on these nuances and processes. Throughout, ensure that your own company internal codes and rules are integrated into the legal and procedural requirements of your case, and ensure that you adhere to those, and that any discrepancies between the two sets of requirements are resolved through your evidence presentation. This is often also when you find out how outdated or inadequate those internal codes are. Follow-up on future improvements and upgrades.
The inquiry itself
Know the process involved without hesitation: opening remarks, presentation, evidence in chief, cross-examination, re-examination. Know how to respectfully and effectively object, how to deal with objections to your evidence. Be fully prepared on your notes, documentation and the contents of the witnesses’ evidence. Do not harm your presentation by being ill-prepared.
Present your case logically. Present the evidence as building blocks for the targets you have flowing from the charges. Be prepared for this, present it with confidence, with integrity, and with balanced decorum. You are the evidence leader – you are allowed to be biased, you are not expected to be neutral. You are the selected person presenting the employer’s case. This does not mean that you lie, mislead or obfuscate the evidence. It means that you fairly, robustly and competently present the evidence that the chairperson needs to make a decision.
Understand, at least peripherally, what the legal position is that affects your evidence and goals. Keep that in mind as you progress with your presentation. What is it that you need to show? You have prepared what it is that you want from the employee’s evidence, or that of their witnesses. Now apply this. Use the procedure as a tool to assist you in reaching your goals. Know the rules, and what lies behind those rules. Be clear in presenting evidence. Do not assume that the chairperson knows what you may know as office gossip, rumours or common knowledge.
Repeat facts as you see them, assume that everything is in contention. Include the chairperson in your journey. Be alert to questions, doubts, even preconceived ideas that may be present in your chair’s own processing of the evidence. Guide, lead, anticipate, assist.
Be as skilful as you can afford to be on not just the merits of the case and the applicable case law, but also the more advanced workplace conflict skills such as timing, persuasion, a working knowledge of identity conflicts and so on. Be comfortable with the distinction between the merit phase and the sanction phase, and how these different arenas are best managed. Where possible, prepare written memoranda for the chair and the employee on anticipated points of contention on facts, law or sanction (duty to begin, admissibility of hearsay evidence, digital evidence and so on), including at least a framework written final argument on the merits and sanction, where allowed.
Practice your final argument – you will be surprised how much of a difference a confident, well-presented argument can make as compared to a stumbling, mumbling jumble that the chairperson must decipher. Always be professional, thorough and competent in your presentation, especially during the more contentious moments, when arguments and insults start to fly. Your job is the comprehensive, skilful presentation of the employer’s case. You are not a persecutor, you do not cross over from professional commitment to personal vendettas or becoming the executioner in past dramas.
Post-inquiry
Your work does not end when the inquiry is over. Always assume some further important level of dispute, such as a CCMA hearing or even Labour Court conflict.
Ensure the proper safekeeping of the inquiry record, maintain evidence chains, the integrity of digital or other items of physical evidence, and where necessary, finalize a transcription of the record up to there. Be available to the chairperson for any follow-up processes, including the dissemination of awards and decisions. Follow through with any aspects of the chairperson’s ruling that needs attention, such as internal improvements, written warnings to be filed, or dismissal processes to be completed. At the conclusion of the article there are a few additional strategic considerations, please keep those in mind as well.
B: THE EMPLOYEE’S PRESENTATION
Preparation
Disciplinary inquiries often follow on an escalation of conflict between the employer and a particular individual or group of employees, and need not come as a total surprise. Preparation for the employee is an important process, requiring the careful balancing of a few interests, often at a time when you may not be in the best frame of mind.
One of the early considerations is whether to participate in the inquiry, or whether it is a sign that you should be pursuing other career options. Disciplinary inquiries, at least in South African workplaces, are often late-stage red flags of a working relationship that has (for whatever reason) run its course. If your honest assessment is that this is the case, consider your resignation or other mutually agreed exit strategy. Get early advice on this if necessary.
Getting involved in a fractious internal inquiry is never a good career steppingstone. Also bear that in mind if you do believe that your career will survive the hearing: do not act in such a way during the process that the working relationship suffers further harm. You can robustly and competently protect your interests without burning the bridge that you are standing on. You should also, once you are served with formal notice of that inquiry, consider any representation.
Is it a matter where you need an attorney, union official, colleague or other representative? Are the complexity of the charges, the evidence probably involved and the potential sanction of such a nature that you can represent yourself adequately or not? If you have any doubt on this, get early and adequate advice on this as well. Prepare, with or then without your representative. Assess your position coldly, as unemotionally as possible. What, if any evidence, can you admit to? Are you really best served by denying everything?
The onus of proving every aspect of the allegations rests on the evidence leader on behalf of the employer. You do not have to prove your innocence. It is also however a reality that someone who shows no remorse for wrongdoing, who drags out the process even in the face of manifestly clear evidence, is often regarded with less sympathy by a presiding officer, and that lack of early remorse can make the difference between keeping and losing your job. Consider this carefully.
When in doubt, let the employer run their case as planned, you can always consider changing your not guilty plea to one of guilty during the process, as you become more convinced of the certainty of their evidence. Ensure that you, or your representative, are fully prepared on the case you have to meet, as well as your own evidence. Gather and collate your own evidence – emails, WhatsApp messages, job instructions, CCTV evidence and so on.
Timeously obtain this from the evidence leader, preferably before the inquiry, and make full use of a written request for information and / or evidence before the start of the inquiry. Clarify questions that may arise from the charge sheet in that same document. Balance the value of appearing to be ready and willing to prove your case, against having sufficient time to prepare. Do not overvalue the unfortunate popular habit of asking for one or more postponement of the inquiry.
This hardly ever creates a good impression of your case and intentions, especially where the employer has provided you with adequate notice. If, however, a postponement is necessary, give such intention in writing, to the evidence leader, well in advance of the commencement of the inquiry.Familiarise yourself with the broad framework of the process: the merits phase where you will plead guilty or not guilty, depending on how that goes then the sanction phase. You may wish to plead guilty and focus your preparation on sanction and mitigation. Remind your representative, if you have one, that there is an important difference between a competent, robust defence and a rude tirade that does you more harm than good. Keep an eye on both the inquiry as well as the working relationship.
Before the inquiry, try to anticipate any witnesses that you may need to call on your behalf, consult with them, and see if you can ensure their availability on the day. Remember that, in the majority of instances, the employer will commence with the presentation of their evidence and witnesses, and your witnesses can often be arranged to be on telephonic standby if they have other commitments on the day and if they are not employees of the specific employer.
The disciplinary inquiry itself
You may very well, at this stage, feel angry, anxious and at a loss about the process itself. For many employees, this is a first and last event. Remember not to destroy the working relationship (if you intend keeping that intact), and also that the modern disciplinary inquiry is not supposed to be an unnecessarily formal event. Ask questions where necessary, including procedural ones. Clarify where you sit, how long the process is anticipated to be, how many witnesses the employer intends to call, whether the proceedings are recorded and whether you can record them yourself, and anything else that you want clarified. Your nerves can settle somewhat by the simple fact that the employer must usually start by presenting their case. There are normally occasions for brief opening remarks, and you are asked for your plea to the charge(s).
Simply indicate your plea (guilty, not guilty). No long speeches at this stage. Keep to the rhythm of the inquiry: generally, the employer calls a witness, leads him / her through their evidence, and then you cross-examine that witness. This is a highly complex skill that really is difficult to always get right, even for trained lawyers. For your purposes, be clear on what it is that this witness said that harms you, and what it is that you can gain from this witness. Where necessary, ask questions that cast doubt on their powers of recollection, on their bias, their past history with you, their benefit in making up evidence against you. Where they are correct, do not belabour the point, or argue against what you know to be true. Longer, repeated cross-examination is hardly ever a better option than short, sharp, on target questions.
Remember also that harmful evidence can still evidence can still benefit from that being placed in perspective – example: “It is true that I swore at the MD, but can you confirm that he started the insults?” A rookie mistake is to simply keep quiet about evidence that you disagree with. The thinking seems to be that you hold such evidence in such contempt that you won’t even comment. This can be a fatal mistake. Remember: evidence against you that you do not try to refute stands as evidence against you. Make your denial or the correct context clear from your questions. Stay respectful of the witness, the evidence leader and the chairperson, and above all the process itself.
Many a good employee case gets set on fire by the disrespectful way that evidence is presented. You can be robust, thorough, competent and effective without proving to be the type of person that management would rather be rid of. The same goes for your representative. Keep notes as the evidence leader proceeds with is evidence. This does not need to be a verbatim record (that is what digital recordings are for) but it is helpful, especially for the untrained and unexperienced, to have little one word or phrase reminders on specific evidence that needs to be raised during your cross-examination.
Do not argue your conclusions during cross. Simply establish the point (“I clocked in at 8h28am”) and argue later, from that “It could not have been me who set the warehouse on fire at 8h15am”. Do not interrupt people when they are speaking. Remember the conflict reality that impressions are valuable, not just hard facts. A calm, dignified employee that denies assaulting his colleague has a better chance at success than a red-faced person screaming at everyone in the room. Ask the chairperson (not the evidence leader) if you have procedural questions, within reason).
Try not to be rushed by the process itself. Breathe, use your time. Ask for a short adjournment if you need to gather your thoughts or consider an event, or even to make a call to get advice. Consult with your representative. When giving your own evidence, be careful of the fatal contradictions. This is what evidence leaders and lawyers live for in these events. You may have said A after the event two weeks ago, now you are saying B. Implied in that is that you are lying, that your evidence is not trustworthy, and that your version should be dismissed. Life does not always work that way, except in inquiries. If you need to change your evidence in a material respect (try not to), then clearly explain to the chairperson why this is necessary – you misunderstood the question, you made a mistake in identifying someone on CCTV, you were under the impression that the office rule was X, and so on.
Be comfortable and conversant with the employer’s document bundle, and your own, if that exists. Having to fumble through 200 pages for the first time at the hearing creates its own anxiety. Take the room with you as you explain your side of the story.
Where possible, have written arguments prepared for the relevant phases as you anticipate them – merits phase, sanction phase, or any points of law or procedure that may arise. If this is a bit too much, at least have your own notes ready to be able to deliver a clear argument on all the points that need to be covered. Where possible, include relevant case law by which the presiding officer may be bound or persuaded. If the debate is about the appropriate sanction, see to it that you are fully prepared for this as well, on the law, the facts, your personal circumstances, your length of service, disciplinary record and so on.
Post-inquiry
If you are dismissed, know your rights (30 day period to file application at CCMA and so on, internal appeal possibilities etc.), or learn and move on. If there are sanctions short of dismissal, do not think the process ends there. These are often simple stepping stones for “corrective discipline”, and if you do not turn the tides of that conflict your next inquiry will be waiting in the wings.
Be clinical about the employer’s concerns, and address them effectively. Real or imagined victimhood does not serve you well here. Turn it around where possible, or use the time to start sending out your cv. Work on relationships that took damage during the inquiry, try to use the energy of the conflict as fuel for improvement and a better working environment. Some of this stays relevant even if you are found not guilty. Resentment, workplace politics, suppressed bullying and power silos can still remain hidden just under the surface, and it is good conflict management practice to deal with these issues there, as part of the inquiry process and its aftermath, as opposed to letting them fester for another day.
Conclusion
The inquiry process often casts much of the merits of the dispute in stone, especially for the employer. The fact that a subsequent inquiry may be deemed to be a process de novo does not always detract from the way that evidence, arguments and remedies were cast at that initial hearing. For at least the employer, there is no second chance.
Even for the employee, the internal inquiry is of great importance, and mistakes and ignorance of law, rules or processes can be first and last mistakes. I have discussed this process as it plays out in our boardrooms and factories, countrywide. I am also on record as holding the view that these inquiries are often processes attended to very late in the proverbial day, and that the adversarial essence of how they are conducted simply further deteriorates the working relationship involved. If that working relationship is of value, if it can and should be salvaged, there are earlier, cheaper and far more effective ways of doing so.
This is primarily the responsibility of senior management. Upgraded workplace conflict systems and processes, tools like early workplace mediation and a general conflict skills transfer to everyone greatly (and measurably) diminishes or removes risk and costs for management, and creates a far more productive and positive workplace for employees.
We offer dedicated and industry-specific advanced courses (in-person, online and hybrid) on the modern workplace conflict skills discussed in this article for selected evidence leaders, mostly in the form of personal coaching, written material and role-playing training, for individuals and teams. Contact us via andre@conflict1.co.za or via our WhatsApp channel on 073 548 0862 for your prospectus.
* In the next (and final) article in this series we study some practical suggestions for improving existing workplace conflict systems, disciplinary inquiries and the risk / cost / productivity calculus for management.
Summary of main sources, references and suggested reading
1. My book Dangerous Magic: essays on South African conflict management contains several chapters and sections dealing with, or relevant to workplace conflict and inquiries (available from Amazon or Paradigm Media)
2. A few wider ideas about the upgrading of disciplinary inquiries in general, my article at https://www.conflict-conversations.co.za/conversations/workplace-disciplinary-inquiries-necessary-upgrades
3. The importance of online conflict management and workplace impact, my article at https://www.conflict-conversations.co.za/conversations/online-dispute-resolution-odr-and-our-conflict-cultural-diversity
4. For articles dealing with the conflict strategies and tactics discussed, see our blog index at Conflict Conversations ·
Full references, further reading material, courses, coaching, study material, workshops / seminars, mediation and representation are available on request.·
A summary of Andre Vlok’s cv / bio can be accessed athttps://www.conflict-conversations.co.za/conversations/2025-online-curriculum-vitae-andre-vlok
(Andre Vlok can be contacted at andre@conflict1.co.za for any further information.) (
c) Andre Vlok
October 2026
* Author’s note on the use of artificial intelligence in writing this articleI learned to draft, argue and write in the hard school of litigation. I enjoy and value the very human process of creating ideas, of testing my own knowledge and thoughts. It is a process that I need, for answering some of my professional and even personal questions, it is cathartic and inspiring. My work requires precision and accuracy, and I only trust myself to deliver on this demand at this level. Other than the most basic research assistance I do not use any AI in the creation of my written work, this article included. It is a matter of pride, of preference, and of mental health. Whether that is a wise choice, I will leave to the reader to decide.
* In the next (and final) article in this series we study some practical suggestions for improving existing workplace conflict systems, disciplinary inquiries and the risk / cost / productivity calculus for management. Summary of main sources, references and suggested reading 1. My book Dangerous Magic: essays on South African conflict management contains several chapters and sections dealing with, or relevant to workplace conflict and inquiries (available from Amazon or Paradigm Media)2. A few wider ideas about the upgrading of disciplinary inquiries in general, my article at https://www.conflict-conversations.co.za/conversations/workplace-disciplinary-inquiries-necessary-upgrades3. The importance of online conflict management and workplace impact, my article at https://www.conflict-conversations.co.za/conversations/online-dispute-resolution-odr-and-our-conflict-cultural-diversity4. For articles dealing with the conflict strategies and tactics discussed, see our blog index at Conflict Conversations · Full references, further reading material, courses, coaching, study material, workshops / seminars, mediation and representation are available on request.· A summary of Andre Vlok’s cv / bio can be accessed athttps://www.conflict-conversations.co.za/conversations/2025-online-curriculum-vitae-andre-vlok (Andre Vlok can be contacted at andre@conflict1.co.za for any further information.) (c) Andre Vlok October 2026 * Author’s note on the use of artificial intelligence in writing this articleI learned to draft, argue and write in the hard school of litigation. I enjoy and value the very human process of creating ideas, of testing my own knowledge and thoughts. It is a process that I need, for answering some of my professional and even personal questions, it is cathartic and inspiring. My work requires precision and accuracy, and I only trust myself to deliver on this demand at this level. Other than the most basic research assistance I do not use any AI in the creation of my written work, this article included. It is a matter of pride, of preference, and of mental health. Whether that is a wise choice, I will leave to the reader to decide.