Disciplinary hearings: The duties and impartiality of the chairperson

Table of Contents:

  1. What exactly does a chairperson do?
  2. An independent chairperson prevents biased decision-making
  3. How does a review of a disciplinary hearing work?
  4. What makes a disciplinary hearing fair?
  5. Employer obligations
  6. Key considerations before instituting formal disciplinary action
    1. Is disciplinary action necessary?
    2. Have you tried suspension?

Disciplinary hearings can be unpleasant, but they are part and parcel of running a business. While organisations aren’t legally compelled to appoint an independent chairperson for these hearings, there are a plethora of benefits to doing so.

The CCMA Code of Good Practice on Arbitrations for Misconduct Dismissals states that employers can use third parties like attorneys or external HR practitioners to chair disciplinary hearings with employees.

South African labour law doesn’t require a chairperson to have formal legal training, but such training is usually necessary to ensure that the hearing is correctly and fairly held. The amount of risk a business can expose itself to by firing one or multiple employees unfairly can be significant depending on the circumstances and the times. Having an expert, impartial chairperson ensures the disciplinary process runs smoothly and fairly and will likely save you a couple of grey hairs down the line.

What exactly does a chairperson do?

  1. They chair the general meeting (quite literally).
  2. They ensure that disciplinary procedures occur at a convenient time and place.
  3. They ensure that proposed motions and amendments are relevant to the meeting.
  4. They make sure that the correct procedure is followed.
  5. They mediate the hearing to ensure that each party (that is entitled to speak) expresses their opinion or rationale without unnecessary interruptions.
  6. They are obligated to act fairly and impartially to all parties involved in the disciplinary procedures.
  7. They maintain order and manage any necessary documentation or minute-taking.
  8. They adjourn the meeting if it is unproductive and unable to continue.
  9. They give rulings on points of order to settle disputes.
  10. They can engage in the debate, but while they do, they must yield the chair to a temporary chairperson.

So those are the roles of the chair of a disciplinary hearing, but what must they not do? The 2 main rules that can’t be broken are:

  1. Influencing or attempting to influence any party to the hearing’s view of any item on the agenda.
  2. Disclosing their vote on any item on the agenda before votes are cast.

An independent chairperson prevents biased decision-making

Several factors contribute to the consideration of a chairperson’s biases. Some of them include:

  1. Having prior knowledge of case details.
  2. Reporting a finding that’s unsupported by the facts of the case.
  3. Whether the chairperson has had a clash with the accused before.
  4. Turning down the employee’s reasonable requests for witnesses, interpreters, representation, or any other prerequisites to an accurate and fair case.

The CCMA code mentioned above obliges Commissioners to assess the fairness of workplace dismissals, so the prejudiced opinion of a biased presiding officer would be considered poorly. This was settled in the case of Chirac vs Transnet Ltd (2009 4 BALR 350), where the CCMA declared the dismissal of the Transnet employee unfair due to the bias of the chairperson. The bias was credited to the hostile relationship between the employer and employee.

Another interesting case on the subject is SARS v CCMA and others (2015 C638/11 ZALCCT). The court restricted the employer from overturning the decision given by a chairperson. SARS later appealed the case and the Labour Appeal Court stated that employers may review decisions if they are dissatisfied with the outcome.

How does a review of a disciplinary hearing work?

The review process for disciplinary hearings is quick and fair. After the chair of the hearing has made a recommendation in line with the disciplinary code, a written notice of appeal can be submitted within 7 days, accompanied by a statement of the reasons for the appeal. The appeal hearing is then held under a new, impartial chairperson.

What makes a disciplinary hearing fair?

There aren’t any legislative guidelines on what specifically makes a disciplinary hearing fair. The commonly used processes have slowly evolved through customs and practices while taking fair procedure into account.

So, what constitutes fair procedure?

For a hearing to be fair, the appointed chairperson should be unbiased and impartial, have no prior knowledge of the case, and must remain neutral at all times. They must also have the correct knowledge of the disciplinary process and dispute resolution methods.

Employer obligations

The employer or employer’s agent must lead all evidence, call witnesses, emphasize the trust relationship between the two parties, and present any relevant documentation or video footage.

Investigating and gathering as much evidence as possible in preparation of the disciplinary hearing helps ensure that the employee isn’t found innocent due to a lack of evidence.

Key considerations before instituting formal disciplinary action

  1. Is disciplinary action necessary?

Consider whether a formal investigation and hearing is necessary. Perhaps informal dispute resolution procedures could solve the issue?

  1. Have you tried suspension?

Suspension, done incorrectly, can lead to claims, so it’s important that employers fully consider the suitability of suspension as a knee jerk reaction. Suspension can be an appropriate decision when dealing with potential threats to the business or employees.

Suspended employees must be informed within a reasonable period of time and receive a follow up in writing. The suspension is not a sanction or punishment, so full-pay and contractual benefits will be received by the employee, with special care made to avoid implications of guilt or pre-judging the situation.

Whether you’re looking for an experienced and independent chairperson to mediate your disciplinary hearings or simply require actionable consultation, my contact details are below:

dewald@vdsconsulting.co.za 

+27 82 925 0851