Importance of an Independent Disciplinary Hearing Chairperson

Throughout South Africa, employers are constantly confronted with acts of misconduct which they believe were perpetrated by their employees. In cases where there is serious misconduct undermining the trust relationship between the parties, employers are required to arrange a disciplinary hearing. This measure is necessary where the employer believes that the misconduct of the employee is serious enough to warrant dismissal. 

Fair dismissals should be both substantively fair (i.e. for a fair reason) and procedurally fair. In this discussion, we focus on one of the aspects of procedural fairness, i.e. the importance of an impartial chairperson. Employers who adhere to this advice will be able to avoid unnecessary losses due to procedural unfairness in the Commission for Conciliation, Mediation, and Arbitration (“CCMA”) or Bargaining Councils.

Role of the Chairperson

Although many employers ask supervisors to conduct these hearings, the CCMA and Bargaining Councils are constantly confronted with matters where dismissed employees allege that these disciplinary hearings were procedurally unfair. 

This is because few supervisors are trained to conduct these hearings correctly. Some matters may also require careful legal consideration and knowledge of the regulations in the industry. Placing the responsibility of these considerations on the shoulders of untrained supervisors or employers is unfair.

During the disciplinary hearing, the chairperson is required to ensure that the process is conducted in an orderly fashion. The chairperson should ensure that the procedural requirements of the notification process were followed, that the employee is aware of the allegations against him or her as well as his or her rights. 

The chairperson should also explain and ensure that all parties are aware of the process which will be followed in the hearing and guide the parties throughout the process to ensure that both the employer and employee have an equal chance to present their versions and mitigating and aggravating factors. 

Based on the information gathered, the chairperson should also make a fair recommendation on a balance of probabilities to decide whether the allegations have been proven. If the latter is true, the chairperson should consider the mitigating and aggravating factors along with other principles to determine whether dismissal is the appropriate sanction.

The Ideal Chairperson

The ideal chairperson must be impartial and have no personal interest in the outcome (i.e. personal or familial relationship with an involved party, involved in the investigation process etcetera). Instead, the chairperson should be focused on evaluating the versions of the parties and applying the law to the facts to make an appropriate finding and recommendation.

This chairperson should also have an understanding of the law and how to apply it to the employee’s case. Lastly, the chairperson should have knowledge of the industry in which the employer operates to ensure that any regulations in that industry are also adhered to.

The Partial Chairperson

In the event that an employee believes that the chairperson acted partially, they are allowed to submit legitimate objections to the chairperson and to request that the chairperson be recused. If this request is ignored and the CCMA or a Bargaining Council finds that the chairperson was in fact partial against the employee, the procedural fairness of the process will be undermined. This may create a liability for the employer as the employer and may result in a compensation award against the employer.

Consequences of a Partial Chairperson

An employer who appoints a partial chairperson may be placed in the unenviable position that the Respondent was in the case of Fawu obo Sotyato v JH group Retail Trust. In this case, the employee confessed to having stolen two bottles of beer from the employer and to drinking one of them during working hours during the hearing and was dismissed.

At the CCMA, however, the arbitrator did not accept the confession as valid and also found that the chairperson of the hearing was biased. This was because the chairperson had caught the accused employee with the beers and had been involved in drawing up the charges. This created a reasonable apprehension of bias and rendered the dismissal procedurally unfair. The employee was reinstated with full back pay.

Considering that dismissed employees have 30 days to refer a matter and that the CCMA and other dispute resolution forums have backlogs the back pay could be substantial, especially with high earning employees. Furthermore, the disharmony in the workplace caused by this situation is also something that employers should seek to avoid.

How can Employers Avoid Risks in the CCMA?

One of the ways in which employers can avoid the aforementioned compensation and/or reinstatement awards is by appointing a trusted and impartial chairperson to preside over their disciplinary hearings. This will save costs in the long run.

In order to save costs in the process, it is also advisable to appoint an employer’s association as they are able to preside over the matter at competitive rates. Unlike consultants, the employer’s associations also have the legal standing to defend their recommendation, and effectively their member, the employer, in the CCMA or Bargaining Councils. 

Our Solution

If you are interested in experiencing peace of mind when you need to discipline an employee but are concerned that you may need the assistance of an external and impartial chairperson to professionally preside over your disciplinary proceedings, do not hesitate to contact ARMS. 

We are a professional and highly-skilled employer’s association geared to assist small, medium and micro enterprises to ensure that their risks are mitigated in the CCMA and other Bargaining Councils.