What to do when you believe that the Chairperson to a hearing is being Unfair?

“Either stand down, or lean on each other.” – Natalie Tosta

Article by Nichole Turner (Senior Labour Advisor)

Introduction

Consider for a moment, that you are in a disciplinary enquiry – you are nervous, you have been denied the opportunity to be represented by MISA and the chairperson is clearly conducting himself (or herself) in an unfair manner! It is here that the concept of a reasonable apprehension of bias might enter the arena.

What is Bias?

The long-standing quote provides that “justice must not only be done – but seen to be done,” meaning that fairness must always prevail (R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233).

In a recent article, we discussed the possible factors which contribute to the finding that a chairperson is bias. In this article, we discuss your remedies to such an allegation.

What are your Remedies?

You have the right to request a bias chairperson to recuse himself from the proceedings.

The test for recusal based on grounds of bias must be objective and reasonable, to show actual bias or a reasonable perception of bias.

You should raise your concerns formally, as soon as possible, once the elements of bias are presented to you.

You will state that the reason for the request for recusal are based on the inference that the chairpersons actions constitute grounds for review, due to the bias shown towards you and the manner in which the enquiry is conducted. The chairperson will then be obliged to listen to your reasons.

You will be required to make a formal Application for Recusal. This application will entail addressing the chairperson on the various reasons, your prospects of success and likely prejudice you may suffer, should he continue chairing the enquiry.

Case Law

In the case of Chirwa v Transnet Ltd (2009) 4 BALR 350 the CCMA found that the dismissal of the Applicant was procedurally unfair due to the bias of the chairperson, whose relationship with the accused employee had clearly been hostile for a long period of time, thus showing actual bias against the dismissed employee. 

In FAWU obo Sotyato vs JH group Retail Trust (2001) 8 BALR 864 an employee was reinstated with full back pay, after the arbitrator found that the chairperson of the enquiry was bias. The chairperson had been involved in the investigation from the outset; he had found the accused employee with beers during working hours and had further been involved in drafting the charges against the employee. In this matter, the arbitrator had rejected the employee’s confession to having stolen two bottles of beer from the employer and to drinking one of them during working hours. It was found that the involvement of the chairperson during the investigation process created a reasonable apprehension of bias, rendering the dismissal procedurally unfair.

In Saccawu obo Mosiane v City Lodge Hotels Ltd (2004) 2 BALR 255, an employee was reinstated after the arbitrator had found that the employee’s dismissal was procedurally and substantively unfair. The arbitrator found that the chairperson of the hearing had been biased in conducting the proceedings.

The flipside of the coin

However, in the matter of Slabbert vs Ikhwezi Truck Tech (Pty) Ltd (2008) 1 BALR 75 the arbitrator upheld the dismissal of the employee who had alleged bias because the chairperson had wanted the employee’s job for himself. The reason for the arbitrator’s decision was that, the employee could not prove that the allegations of bias – the arbitrator found that employee failed to show that the chairperson wanted the employee’s job and there was no evidence that the chairperson had behaved unfairly in conducting the disciplinary hearing or in arriving at his decision.

What if the Chairperson refuses to recuse himself?

If the chairperson refuses to recuse himself, you are advised to proceed with the hearing, as best you can, under the circumstances. Put your version forward, continue to cross-examine company evidence and witnesses, and make it known that you intend challenging the fairness of the outcome, so that it may reflect on the record. Most importantly, do not walk out of the enquiry.

Conclusion

You have the right to request that a chairperson recuse himself from the proceedings, if he is acting in an unfair, biased manner towards you. You must ensure that you have independent, objective, valid reasons to request for his recusal and to make a formal application, in that regard.

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