Your Disciplinary Chairperson May Be Exposing You to Risk

When employers conduct disciplinary hearings, significant attention is usually given to the allegations, the evidence and the outcome.

Far less attention is given to one critical factor: the chairperson.

In many cases, the chairperson’s conduct and approach determine whether a dismissal will withstand scrutiny. A flawed hearing, even with strong evidence, can result in unfair dismissal findings and adverse CCMA outcomes.

For employers, the risk often lies not in the misconduct, but in how the hearing is run.

The Misconception: “Any Manager Can Chair a Hearing”

Many employers appoint internal managers or HR personnel as chairpersons on the basis that:

• They understand the business

• They are senior

• They are available

While this may be practical, it is not always legally safe.

A chairperson must be independent, objective and procedurally sound. Without this, the entire process becomes vulnerable.

Why the Chairperson Matters

The chairperson is responsible for:

• Ensuring a fair hearing

• Assessing the evidence

• Making findings on guilt

• Determining the appropriate sanction

If the chairperson fails in any of these areas, the dismissal may be challenged.

Even strong cases can fail if the process is flawed.

Where Employers Get It Wrong

1. Lack of Independence

One of the most common risks is appointing a chairperson who:

• Was involved in the investigation

• Has prior knowledge of the matter

• Has a vested interest in the outcome

This creates an appearance of bias.

Even perceived bias can undermine the fairness of the hearing.

2. Predetermined Outcomes

If the chairperson approaches the hearing with a fixed view:

• The process becomes a formality

• The outcome appears predetermined

This is a common basis for challenge.

3. Poor Understanding of Procedure

Disciplinary hearings are not informal conversations.

Common procedural errors include:

• Failing to allow proper representation

• Not giving the employee a fair opportunity to respond

• Limiting cross-examination

• Ignoring relevant evidence

These defects can render the process unfair.

4. Inadequate Reasoning

Chairpersons often:

• Deliver brief or unclear findings

• Fail to explain how conclusions were reached

• Do not engage with conflicting evidence

This weakens the employer’s position if the matter is challenged.

5. Incorrect Sanction Decisions

Even where misconduct is proven, the chairperson must decide on an appropriate sanction.

Errors include:

• Imposing dismissal without considering alternatives

• Ignoring mitigating factors

• Applying inconsistent sanctions

Sanction is one of the most litigated aspects of disciplinary cases.

The Real Risk: Losing a Case You Should Win

Employers often face this scenario:

• The misconduct is clear

• The evidence is strong

• The dismissal seems justified

Yet the case is lost.

This usually happens because:

• The chairperson was biased or perceived to be biased

• The hearing was procedurally flawed

• The findings were not properly reasoned

In labour disputes, process is often more important than outcome.

A Practical Example

An employer appoints a senior manager as chairperson.

The manager was involved in the investigation and has already expressed views on the employee’s conduct.

The hearing proceeds and the employee is dismissed.

Outcome:
The employee challenges the dismissal.

The employer may struggle to defend the process due to:

• Lack of independence

• Perceived bias

• Procedural irregularities

Internal vs External Chairpersons

Many employers rely on internal chairpersons for convenience.

However, this can create risk where:

• The matter is complex

• The allegations are serious

• The organisation lacks procedural expertise

In high-risk cases, external chairpersons are often more defensible.

Why Employers Underestimate This Risk

The focus is usually on:

• Proving misconduct

• Managing the employee

• Reaching a decision quickly

What is overlooked is that the chairperson’s role is central to the fairness of the process.

A flawed chairperson can undo an otherwise strong case.

How Employers Can Reduce Risk

To protect the integrity of disciplinary hearings:

• Appoint chairpersons who are independent and impartial

• Ensure chairpersons understand procedural requirements

• Avoid appointing individuals involved in the investigation

• Require clear, reasoned outcomes

• Consider external chairpersons for complex or high-risk matters

The goal is not only to reach a decision, but to ensure that the decision is defensible.

Final Thoughts

The disciplinary chairperson is not a formality.

They are central to the fairness and legality of the process.

Employers who overlook this often discover too late that the outcome of the hearing is less important than how it was conducted.

Need Help with Disciplinary Hearings?

Barter McKellar advises employers on disciplinary processes, chairperson appointments, dismissals and CCMA disputes.

If your business is conducting a disciplinary hearing or facing a complex misconduct issue, ensuring that the process is properly managed can significantly reduce legal risk.

Contact our team for practical, commercially focused labour law advice.