Presiding officers must be unbiased

By Ivan Israelstam, CEO of Labour Law Management Consulting

It all too frequently occurs that employers conspire to get rid of employees despite the absence of genuine evidence of the employees’ wrongdoing. This employers do for a wide variety of reasons which are, amongst others:

· The employer dislikes the employee for reasons unrelated to the workplace. For example, the manager is aware that the employee, who goes out with the manager’s daughter, belongs to a biker gang. The manager fires the employee for refusing to leave his daughter alone

· The owner wants a more attractive secretary

· The employee is unwilling to grant his/her superior sexual favours

· The employee has clashed with a key executive who has threatened to resign

· The employee has reported the employer to SARS, the Department of Labour or Department of Health for violating the law

· The manager is under pressure to perform and uses the dismissed employee as the scapegoat for performance problems

· The employer feels that it is time that it shows the workers who is boss and picks on the first employee who makes a mistake

· The shop steward stands up for the employee’s rights and is labelled as a trouble maker.

Employers then conspire to get rid of such undesirables through the use of a number of tricks including:

· Firing the employee orally and then pretending that the employee absconded

· Framing the employee for poor performance or misconduct

· Provoking the employee into committing misconduct

· Setting up a disciplinary hearing where the presiding officer has been primed in advance to fire the employee.

This latter trick clearly renders the presiding officer biased. This constitutes a serious breach of the employee’s right to fair procedure. Where the employer is caught out using such a biased presiding officer the CCMA has no mercy. The employee is likely to be reinstated with full back pay or to be granted heavy compensation to be paid by the employer.

Such bias on the part of a disciplinary hearing chairperson can be discovered in a number of ways including:

· The chairperson grants the complainant (person bringing the case for the employer) the opportunity to obtain more evidence, take adjournments or interrupt the employee; but does not grant the employee similar rights.

· The presiding officer ignores evidence brought by the employee

· The chairperson is chosen to hear the matter despite having been the one who caught the employee breaking the rule. In the case of FAWU obo Sotyatu vs JH group Retail Trust (2001, 8 BALR 864) the arbitrator found that the manager who chaired the disciplinary hearing had been the one who had apprehended the employee. This was found to indicate bias and was unfair. The employee was reinstated with full back pay.

· The chairperson says things early in the hearing that indicate that he/she has decided in advance that the employee is guilty.

For example, in the case of Fourie & Partners Attorneys obo Mahlubandile vs Robben Marine cc (2006, 6 BALR 569) the employee was dismissed for attempting to remove several frozen chickens that he had hidden in a bucket. The arbitrator accepted that the employee was guilty of the offence but still found the dismissal to be unfair. This was primarily because the chairperson of the disciplinary hearing had revealed his bias by asking the employee at the beginning of the hearing “do you have an excuse for stealing the chickens?”

The fact that arbitrators do not hesitate to punish biased or inept presiding officers means that employers should:

· resist the temptation to ‘fix’ the outcome of disciplinary hearings in advance

· avoid misusing disciplinary processes to pursue private agendas

· ensure that only impartial and properly trained persons chair disciplinary hearings.

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