Facing a disciplinary hearing can be a frustrating experience. The process can be damaging to your reputation and threaten your livelihood. As such, it is important to be thoroughly prepared.
Disciplinary hearing vs. criminal proceeding
There are several differences between a disciplinary hearing and a criminal proceeding, most notably disciplinary hearings may not be subject to the Charter of Rights and Freedoms. The Charter focusses on state power over individuals. If your employer or administrative governing body is not a government agency, your Charter rights might not apply. As an example, your employer may be able to search a locker or work computer to gather evidence without a warrant. Another important difference is that many disciplinary hearings operate on a different standard of proof than criminal proceedings. A criminal conviction requires proof beyond a reasonable doubt. Disciplinary hearings, by contrast, often only require proof that it is more likely than not that the allegation took place.
Despite these differences, disciplinary hearings must be procedurally fair. This should include the opportunity for an accused to present evidence, question witnesses, and argue their case before an impartial decision-maker (either an individual or a panel). Do not hesitate to insist upon procedural fairness.
Preparing for your disciplinary hearing
To prepare for a disciplinary hearing, the first step is to understand the allegations. The employer or governing organization must provide information regarding the purpose of the hearing. The allegation could be a breach of a workplace code of conduct, harassment policy, internet usage agreement or countless other violations. With the information provided by the employer, track down the corresponding source document to see if the alleged behaviour is actually a violation.
Understanding the allegations also includes how the case against you will be presented at the hearing, specifically what witnesses will be involved and what they will say. Insist on being provided copies of every statement or document available.
The next step is to determine if any resources are available. If English is not your first language, requesting an interpreter to help understand the accusations and follow the proceedings should be considered. A union may provide a representative familiar with disciplinary hearings or access to a lawyer. If applicable to you, get in touch and make use of any resources that are available.
The next step is to understand the procedures of the disciplinary hearing. Every organization will be slightly different, but many larger ones should have written policies for holding disciplinary hearings while smaller ones may not. The important thing is to gather as much information as possible on what to expect during the hearing and if anything needs to be done prior to the hearing, such as submitting a response, adding a defence witness, or filing evidence. Another procedural detail to make note of is any restriction on legal representation. A lawyer can help prepare for the hearing but may not be allowed to attend the hearing.
The next step is to prepare the case. The case will need to be crafted to suit the nature of the allegation and should consist of evidence, questioning and a closing argument:
- Evidence: Evidence will usually be in the form of documents but could be any physical item. If any evidence exists that could counter the allegation, you will likely need to introduce it as part of your case. The disciplinary hearing should have procedures for introducing evidence, specifically what types of evidence can be accepted and what evidence will need to be authenticated by a witness. It will be important to understand the procedures if the evidence is part of the case.
- Questioning: Prepare a list of questions for each witness. Questioning does not need to lead to dramatic inconsistencies in testimony. It is simply to ensure the testimony includes your perspective, such as by emphasizing the limits of a witness’ knowledge. Also, if you plan to mention something during your closing argument, be sure to question the relevant witnesses on the matter.
- Closing Argument: The closing argument is the last chance to explain yourself. Although it comes last, it should be developed first. By knowing what you want to argue, you can work backwards to create your questions and gather your evidence.
The case is ready to be argued and it is time for the disciplinary hearing, however, the work is not done. Throughout the hearing, keep detailed notes throughout. Your notes could be the basis to launch an appeal if needed. If you are considering an appeal, it may be beneficial to consult with a professional liability lawyer.