WHEN there has been a serious transgression at work, a criminal investigation may start before the internal disciplinary investigation.

If an employee commits a serious transgression, such as theft or fraud, employers often initiate a criminal investigation in addition to, and often before, an internal disciplinary investigation.

Disciplinary and criminal proceedings are not the same. The onus of proof is the difference and they involve distinctly separate processes.

It would therefore be wrong for an employer to dismiss an employee, without conducting an internal disciplinary hearing, merely because the employee had been found guilty in a criminal case. It would also be unwise to delay disciplinary proceedings until the outcome of the criminal case.

The right thing to do is for the employer to deal with the matter in an internal disciplinary hearing as soon as possible, irrespective of what happens in the criminal case.

But what if the employee insists that he or she has the right to remain silent and refuses to participate in disciplinary proceedings?

In the case of Mohala versus Citibank and others, the employee’s attorneys brought an application to the Labour Court, attempting to delay disciplinary proceedings until the outcome of the criminal trial.

This was based, amongst others, on the employee’s right to remain silent in the criminal proceedings.

In other words, so the argument goes, if he had to defend himself in the disciplinary hearing, it would undermine his right to remain silent.

Judge Revelas found that an employee had a choice between remaining silent and defending himself at the disciplinary hearing.

The court was not prepared to protect the employee against any prejudice that might arise and ordered him to attend the disciplinary hearing.

Another case dealt with the consequences of a disciplinary hearing that had been delayed until after the criminal trial.

Such delay is completely unnecessary. In any event, the employer cannot simply rely on the outcome of the criminal trial or on the evidence led in that trial.

A separate internal disciplinary investigation has to be held where all the relevant evidence is led, the employee is given an opportunity to state his or her case, and where the chair of the hearing comes to an independent finding. Not doing so would amount to procedural unfairness.