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The choice of a person to Chair a disciplinary hearing is never an easy task. There are a 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. There are no legislative guidelines on this - these guidelines have evolved from custom and practice, and probably a little common sense as well, and also taking into account the requirements of a fair procedure.
A fair procedure dictates that the chairperson of a disciplinary hearing should (if possible):
- Be unbiased and impartial
- Have no prior knowledge of the case
- Must remain neutral at all times and does not represent either party to the dispute
- Have a good knowledge of the correct procedure
- Be capable of taking down his own notes (not the minutes) during the proceedings
- Have at least a working knowledge of the correct dispute resolution procedures.
- Have at least a working knowledge of basic labour law.
- Be experienced in weighing up evidence, and experienced in separating the facts from opinions and hearsay, in order to arrive at a verdict of guilt or innocence.
- Be able to justify and give reasons upon which his verdict of guilt or innocence is based.
- Be experienced in considering all the factors that need to be considered in arriving at a finding on a suitable and fair sanction.
- Be able to justify and give reasons upon which the decided sanction is based.
The chairperson should also be given a mandate by the employer, as to whether he is required to make a decision regarding a sanction, or whether he is required to make only a recommendation. It can be seen that this is not a task for an amateur. The chairperson should (although this is not always possible) 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 everybody 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 not likely that you will be able to do so. And then, what about all the other desirable attributes that the chairperson should possess?
In addition, the person chosen from within the organization, 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 free 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 amount to nothing more than window dressing.
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.
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