Your guide to labour law in South Africa
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Choose Wisely. The choice of a person to Chair a disciplinary hearing is never an easy task. They are the number of qualities that are highly desirable in the choice of a chairperson and in fact the correct choice of a chairperson is a critical element in the success or otherwise of the disciplinary process. A very vital element (indeed, a requirement) of what is termed "fair procedure" is that the chairperson of a disciplinary hearing should:
It can be seen that this is not a task for an amateur. The chairperson should have no prior knowledge of the case, and he should owe no allegiance to either the complainant or the respondent. This means that the chairperson must be completely neutral. It is extremely difficult in the work situation to keep a pending disciplinary action a secret. It is almost 100% certain that when disciplinary action is to be taken against an employee, the news of the forthcoming disciplinary process spreads like wildfire throughout the workplace, even before the official notices have been issued. It is even more certain that knowledge of the case will have come to the attention of anybody in a management position higher than a supervisor, and in all probability everybody below that level knows about it as well. How then do you choose an impartial and unbiased chairperson from within the workplace? It is virtually impossible. And then what about all the other desirable attributes that the chairperson should possess? In addition, the person chosen from within the organisation to act as chairperson will, with certainty, be primed before the hearing by the M.D. or somebody higher, and will be told what outcome the employer desires from the disciplinary process. This usually entails something like "I want this person fired. If you don't fire him, I will fire you." And thus the "unbiased and impartial" chairperson proceeds to chair the disciplinary proceedings. The chairperson must be able to apply his own mind, as opposed to applying the pre-decided mind of the employer, to the facts of the case and to his deliberations in arriving at a sanction. If this cannot be done, a fair verdict and a fair sanction cannot be arrived at. If the chairperson is simply going through the motions and following the employer's instructions regarding the desired outcome, the proceedings become an absolute farce and it would be far better for both bodies if the proceedings were simply dispensed with, and a verdict and sanction announced without any prior procedure. Most employers utilise a chairperson from inside because they are reluctant to pay a fee of R1500-00 or perhaps R2000-00 for the services of an outside chairperson. But when one considers the final cost of utilising a chairperson from inside the organisation in terms of conciliation and arbitration proceedings and possibly the costs of an attorney to represent at arbitration, and then add to that the award made in favour of the employee, the question must be asked which is the more economical route to follow? Choose Wisely.!!!!! |
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The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za |
