Disciplinary hearings require skill

 

Ivan Israelstam

At a disciplinary hearing the parties present would normally be:

• the accused employee;
• the accused's representative;
• the complainant - who is the person assigned by the employer to present the case against the employee;
• the presiding officer (chairperson) who acts as the "judge", and who controls the hearing, arrives at a verdict and decides on the appropriate corrective measures.

This could either be a manager of the employer or an external person. The chairperson should be someone impartial, properly skilled in chairing hearings and fully knowledgeable in the law of discipline.

• the witnesses of both parties. 

Should the accused employee bring witnesses as part of his/her defence it is most important for the complainant to cross-examine those witnesses. The purpose of this is:

• To deny those things said by the witnesses that the complainant believes to be untrue;
• To expose the weaknesses in the testimony of the witnesses;
• To highlight the lack of credibility of the witness;
• To ask the employee's witnesses any questions that could shed light on the employee's guilt.

Once the complainant's witnesses have testified, it is essential that the accused employee is given the opportunity to cross-examine them.  It often happens that the employee, while cross-examining a witness, asks questions that appear to be irrelevant to the case. The chairperson is entitled to ask how the line of questioning is relevant to the charges.


However, the presiding officer is not entitled to interfere unduly with the employee's cross-examination of the complainant's witnesses. The Labour Relations Act (LRA) neither deals with the employee's right to cross-examination nor prescribes the extent to which the employee can digress. However, CCMA arbitrators and Labour Court judges all insist that employees are given the right to cross-examine witnesses.


Interfering with this right without sound reasons is likely to land the employer in serious trouble. For example, in Aranes v Budget Rent a Car, the arbitrator found the chairperson had been wrong in intervening before the accused employee had been given a chance to cross examine the complainant's witnesses.


This was unfair because it would have intimidated the accused employee and given him the impression that the chairperson had already made up her mind that he was guilty. In Labuschagne v Anncron Clinic (2005, 1 BALR 40 CCMA) the employee had been the administrative manager at the clinic.


She had been dismissed for putting laxative in a cup of yoghurt that had been eaten by the hospital manager before he had embarked on an airplane trip. The employee admitted putting the laxative in but claimed that it had not been intended for the hospital manager.


The arbitrator found that chairperson of the disciplinary hearing had continually interrupted the accused employee while she was trying to question the complainant's witnesses at her disciplinary hearing. The arbitrator found this to be unfair and ordered the employer to pay the employee six months' remuneration in compensation.


Although the disciplinary hearing's presiding officer is in control of the hearing this does not give him/her the power to do anything he/she likes. The law restricts the rights and powers of the presiding officer and the CCMA is there to act as policeman should the presiding officer exceed his/her powers.


If an error on the presiding officer's part potentially interferes with the rights of the accused employee the employer is likely to lose its case at the CCMA.

• Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011 888 7944 or e mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it  

• Our thanks to the Ivan and The Star newspaper for the usage of this article