Duty and Function of a Chairperson during a Disciplinary Hearing

“Right is right, even if everyone is against it, and wrong is wrong, even if everyone is for it.” – William Penn

Introduction

Often employers hold disciplinary hearings so as to pay lip service to the law, rather than enable employees a fair opportunity to present their case. These practices can lead to procedurally unfair dismissals, that can impact on the substantive fairness of the dismissal.

The appointment of the correct person, to manage the task at hand is very important. This person should be of more seniority than the alleged transgressor; they must be impartial and have no prior information, even if the appointed person is from within the company, or from an external organisation. 

The person that will be conducting the hearing is referred to as a Chairperson or Presiding Officers.

Duties and Responsibilities of the Chairperson of a Disciplinary Hearing

Responsibility and Character Traits:

The Chairperson must be objective, he must apply his mind to the process and keep his personal feelings at bay. He is required to steer the disciplinary process smoothly, by keeping the process free of anger, swearing and other insulting behaviour. Often tensions are quite high at a disciplinary hearing, so it is necessary for the chairperson to show the necessary compassion for both parties. The Chairperson must ensure that he/she has had adequate legal training; must allow all relevant questions to be asked; and should use his/her discretion to avoid irrelevant or frivolous questions, which might cause unnecessary delays in the process or derail the course of the proceedings.

It is the chairperson’s duty to understand what behaviour would constitute “bias” and avoid it at all costs. Bias refers to having a preconceived idea or notion as to how the hearing should unfold, for example:

• Having had previous knowledge or details of the case,
• Having negative personal feelings towards the employee;
• Unreasonably turning down requests for postponement, representation, calling of witnesses or to make use of an interpreter;
• Make a finding based on the employer’s instruction, without fully considering the facts and evidence in the hearing.

Other characteristics of a fair and dutiful chairperson would be having a strong sense of objectivity to distinguish fairly between reasonable and unreasonable behaviour; and the ability to judge the merits of the matter before him/her.

After establishing what is expected of the chairperson, we continue to elaborate a little more on the expected process of a disciplinary inquiry below.

Stage 1: Preliminary Issues

The chairperson will:

1. The chairperson will welcome the parties to the process through introductions, affording all parties (and their representatives) the opportunity to introduce themselves as well;
2. Explain the purpose of the enquiry and possible outcomes of the process;
3. Ensure that the employee understands his/her right to representation, considering the companies’ disciplinary code, meaning that either internal representation only will be allowed; or representation by a union official, upon agreement with the employer; or in the case of a shop steward to be represented by an official of such union.
4. The chairperson will then be tasked to further ensure all rights as per the Notice to attend a disciplinary hearing are adhered to: being that the employee was issued with a notice to attend the disciplinary hearing, in a language that he/she understands; that the charges and their consequences are understood; and that the employee was provide with the necessary time to prepare for the hearing;
5. Confirm that parties are allowed to call witnesses to corroborate their version of events, and be allowed to cross-examine the other party’s witnesses;
6. Enquire whether the employee needs to make use of an interpreter, if so require, and confirm the language that the hearing will be conducted in; and
7. Confirm whether hearing will be recorded.

Stage 2: Procedure of Enquiry

The chairperson will follow the below procedure:

1. Ask certain general questions relating to the position of the employee, his duties and responsibilities to understand the nature of the alleged transgression;
2. The employee shall plead to the charges, either pleading guilty or not guilty;
3. The employer will first lead evidence in support of the charges, evidence can be by way of documentary evidence, witness testimony, video footage, or voice recordings (provided the author is there to confirm the contents) etc.;
4. Witnesses must not listen to the evidence of the person before him/her, they are not to be interrupted whilst giving evidence, and once they are done with giving evidence the employee or employee representative will have an opportunity to cross-examine the testimony of the witness by putting their version of the events to that witness for the witness to provide comment thereto;
5. The chairperson can also ask clarifying questions;
6. When the Company closes their case the employee will be allowed to present his/her version directly or with the assistance of their representative;
7. The company is thereafter afforded an opportunity to cross-examine the employee.
8. This process will be repeated with all the employee’s witnesses.

Step 3: Make a finding

Once the process described above is concluded, the chairperson will adjourn the meeting to consider all of the facts in order to make a finding of either guilty or not guilty of the charges.  This will be done by considering the most probable version, relying on a balance of probability.  The chairperson should not take his duty lightly, and must provide reasons to justify his finding of guilty or not guilty. The time taken to make a finding will depend on the nature of the charges and the amount of evidence led.

Step 4: Sanction

The finding can be presented in person or electronically, as a preliminary outcome to both parties. The parties will thereafter be required to supply the following information:

1. Aggravating factors on behalf of the employer, considering the company’s disciplinary code, the employee’s previous warnings or history of misconduct, and the trust/working relationship;
2. Mitigating factors on behalf of the employee, such as the employee’s personal circumstances, age, years of service, number of dependants, financial obligations and any other relevant factors.

Thereafter the chairperson will decide on a fair sanction based on a fair reason, and communicate to the parties after careful consideration. 

Substance and Procedure

A disciplinary hearing should mirror fairness and opportunity for all parties to participate equally in the process, otherwise it will be highly likely that an unfair dismissal dispute will be referred to the Dispute Resolution Centre (DRC). 

MISA recently published an article explaining the process from this point onwards.

The most important aspects to a disciplinary process is to ensure that the chairperson ensures that there exists both substance and procedure. The below mentioned case law shows that dismissals for a fair reason, may not necessarily be procedurally fair. 

In matter of NUM obo Ncongwane/Sheltam (Rail) Mine Services CC [2004] 6 BALR 738 (CCMA) the applicant was dismissed for reckless driving after the wheels of his locomotive slipped and damaged the tracks of the rail network at a mine belonging to one of the respondent’s clients. The commissioner held that, although the sanction of dismissal was harsh he did not overturn the dismissal.  However, held that because the employer appointed the same manager who conducted the investigation, to chair the disciplinary hearing, the dismissal was procedurally unfair; awarding the applicant compensation of two months’ wages.

In the 2021 case of South African Onderwys Unie obo Williams/Gauteng Department of Education [2021] 9 BALR 938 {ELRC) the applicant, a principal of a school was dismissed after a pupil drowned during a school outing.  The commissioner held that it was not the principal but rather the department that should be held vicariously liable for the boy’s death, finding further that the Member of the Executive Council (MEC) should have recused himself as chairperson of the proceedings, because of his personal involvement in the matter from outset of the investigation, having made various statements in the media; reinstating the applicant with retrospective effect.

Conclusion

MISA members should know their rights and spend time preparing for disciplinary hearings. Members should object, on the record, when procedures are not followed correctly, or if the chairperson appears to be biased.  We further urge you to contact MISA immediately, if you are issued with a notice to attend a disciplinary hearing, in order to receive the necessary assistance.

(Article by Anne-Marie Bodenstein, edited by Nichole Turner)

MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance during this time: 

Legal/Labour-related enquiries                      Legal@ms.org.za  

Legal Reception                                                011 476 3920

MISA Benefit claim-related enquiries            Claims@misa.org.za   

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

Mobile App                                                        https://onelink.to/w9a7ku