By Ivan Israelstam, chief executive of Labour Law Management Consulting
In certain special circumstances employees are entitled to be represented at disciplinary hearings by external people such as trade union officials and legal experts. For example, in the case of Molope vs Mbha and others (2005, 3 BLLR 267) the Labour Court found that employees are entitled to be represented by a colleague, lawyer or union official.
Likewise, employers are entitled to get external experts to chair disciplinary hearings. In the case of MEWUSA obo Mbonambi vs S Bruce cc (2005, 8 BALR 809) the employee was dismissed for dishonesty and insubordination. The employee refused to attend his disciplinary hearing and claimed that the employer’s use of an external chairperson was procedurally unfair. The arbitrator stated that it was established law that employers were entitled to appoint outsiders to preside over disciplinary hearings.
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 not because the dismissal was considered inappropriate but 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?
- Prove that all of these rights have been afforded to the employee without taking proper minutes?
Thus, in order to be able to ensure that the employer complies with the employee’s rights and in order to be able to prove such compliance, 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. Because it is at the CCMA where the employer will be required to prove that it complied with legal procedure when dismissing the employee.
Thus, it is far safer to formalise all procedures related to misconduct and poor performance in the interests of making sure that each and every legal right of the employee is strictly adhered to. This includes the employee’s right to an unbiased chairperson. A presiding officer unskilled in chairing hearings risks 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.
To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on firstname.lastname@example.org or 0845217492.