There is a serious misconception that employers may not get external experts to chair disciplinary hearings. It is true that such experts might, under certain circumstances, not be allowed to represent the employer (or the employee). However, the person chairing the hearing is not representing either of the parties. Instead, the chairperson is there to gather the facts provided by both parties and to make a fair decision which can go either way.
In the case of Khula Enterprise Finance Limited vs Madinane and others (2004, 4 BLLR 366) the Labour Court found that it was not unfair for an external legal expert to chair a disciplinary hearing.
Not only is it perfectly fair and legal for an external expert to be asked to chair the hearing it is also desirable because:
- An external person will be less susceptible to influence from the parties than would an internal chairperson.
- An expert in labour law will have the experience and skill to run the hearing according to the very complex requirements of the laws of evidence.
- Such an expert would be able to arrive at a fair decision without breaching the myriad of complex principles that the CCMA expects to be applied.
A great many employers have had their dismissal decisions overturned at the CCMA simply because the chairperson, an internal employee or manager, was unskilled in the chairing of hearings.
Schedule 8 of the Labour Relations Act (LRA) requires that the employee be allowed the opportunity to state a case in response to the allegations. The courts have consistently interpreted the latter requirement to mean that the accused employee must be given the right to an unbiased chairperson, to testify, to bring documents, call witnesses and cross examine evidence brought against him/her. The question then is how can an employer:
- provide for these legal rights without setting up a proper enquiry with a fully skilled chairperson, and
- prove that all of these rights have been afforded to the employee without taking proper minutes?
Thus, the employer has no choice but to use a properly skilled chairperson and to set up a formal hearing, the record of which becomes part of the evidence at the CCMA. A presiding officer who is not highly skilled in legal procedure will fail to make sure that each and every legal right of the employee is strictly adhered to and will risk breaking rules of impartiality that he/she is not even aware of. This is likely to destroy the employer’s case at the CCMA.
Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.