Introduction
It is commonplace that before an employer makes a punitive or non-punitive decision against an employee, a disciplinary hearing is one of the requirements to ensure that the outcome is affected according to a fair procedure.
A fair procedure, amongst other things, prescribes that the Chairperson of the hearing should not be biased, remain neutral, be able to justify and give reasons for his/her decision.
Overview
Some employees do not view disciplinary hearings as a forum to determine facts and employees to answer and dispute charges levelled against them for purposes of proving their innocence. Instead, they view it as a fait accompli, a tick box exercise for the sanction to be presumed procedurally fair (at least on the face of it).
As are evident from many cases, it does not require a level of expertise or qualification for one to chair a disciplinary hearing. In some cases, employers appoint fellow employees to chair hearings instead of an external and impartial person whom the employer does not employ. Just to be clear, whether a person is an external person and not the employer's employee, it does not guarantee that they will always be impartial and be neutral.
Are Disciplinary Chairpersons impartial?
Employers go through great lengths to sanction an employee. This includes hiring and paying for the services of an external person to chair the hearing. Unlike in CCMA or Bargaining Council wherein the Council or CCMA pays for the services of Commissioners, the services of the Disciplinary Chairperson are paid for by the employer. On its face, it looks evident that the Chairperson will tend to be pro-employer because that would likely guarantee them more work from the employer. Especially in instances where the employer informs the Chairperson of its desired outcome or recommendation.
In some instances, employers hire the same "usual suspects" to chair hearings. It's either the employer's lawyer, HR personnel or an external chairperson. The same "usual suspects" will also be the same people representing the employer at the CCMA or Bargaining Council.
What happens when Management interferes with the recommendation of the Chairperson?
For example, this happens when the Chairperson recommends that the employee be handed a sanction short of dismissal. This may be a final written warning or warning, but the employer goes against the recommendation by dismissing the employee.
In this instance, the employee will have recourse by referring the matter to the CCMA or Bargaining Council on the grounds of unfair dismissal. The employer cannot unilaterally alter the Chairperson's recommendation or influence the Chairperson to change their recommendation.
For an employer to review the recommendation, the employer's disciplinary code must contain an express provision granting the employer such powers. If the disciplinary code is silent, the changing of the Chairperson's recommendation will result in the new sanction being invalid.
Conclusion
Employers must be aware that the recommendation of the Chairperson of a Disciplinary Hearing is final and binding. The recommendation could only be substituted through an internal appeal or review process as contained in the employer's disciplinary code. Suppose the disciplinary code is silent and the employer is not happy with the recommendations, nothing prohibits the employer from instituting a second disciplinary hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
