A vexed question of law often has been – who can chair a disciplinary hearing? Obviously, any person who has been involved in the investigation has knowledge of the facts and of the “charges”, is disqualified from being the Chairperson. The cornerstone of competence of the Chairperson is one of dependence and any sort of bias might be interpreted in favour of the employee and the Chairperson should recuse him or herself. The Chairperson should not have been involved in the allegations, the dispute, the investigation or any of the facts leading up to the disciplinary hearing.

Furthermore, the chairperson should be chosen in terms of the Disciplinary Code of the business and if there is no Disciplinary Code, it should be someone who could be deemed to be impartial. There is nothing wrong in appointing an outsider, especially one who is qualified in Industrial Relations or Labour Law. Remember, if the procedure or findings are challenged by the employee concerned, then that chairperson might have to appear at the Arbitration to justify the procedure and/or recommendations. The chairperson should be warned that this appearance at the CCMA or Bargaining Council flows on from his or her acceptance of such a brief. Over and above this, the recommendations given by the chairperson should be done in writing and such recommendations should be furnished to both the employee and the company. These recommendations will be subject to close scrutiny and if the dismissal or otherwise is challenged, then these recommendations become part of the bundle of documents used at Arbitrations.

Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za