Who should chair disciplinary hearings?

It happens in practice that the employer approach a third party, such as an attorney, to chair disciplinary hearings of employees. Such practise is not prohibited.

The problem, however, is that the CCMA may make a ruling that the dismissal was unfair as result of the chairperson being biased.

In most instances, I would advise employers not to make use of the services of an attorney to chair disciplinary hearings. The reason is clear - the attorney receives the instruction from the employer, and the employer provides the attorney with all the facts, and sometimes also suggests a certain sanction that the employer wants to have imposed.

There is a number of factors that may suggest that the hearing chairperson could have been biased. Some of these factors are the following:

• Where the chairperson has previously had a clash with the accused employee; or
• Where the chairperson has prior knowledge of the details of the case; or
• Where the chairperson unreasonably turns down requests from the employee for representation, witnesses, for the services of an interpreter or other requirements that will make the hearing a fair one; or
• Where the chairperson makes a finding that is unsupported by the facts brought before the hearing.

It is quite conceivable that an attorney, who acts on behalf of the employer, may be found to have been biased.

In order to ensure that employers do not lose cases due to chairperson bias or alleged bias at disciplinary hearings, employers must ensure that:

• Hearing chairpersons have no involvement in or knowledge of the case before the hearing.
• Hearing chairpersons have a solid understanding of what constitutes apprehension of bias.
• They contract in a labour law specialist to chair hearings where the employer has no internal official with the necessary qualifications and knowledge to carry out the task properly.