In dealing with disciplinary inquiries, procedural fairness plays an integral role in the overall fairness of the inquiry. Even when there is substantive fairness, without procedural fairness an employer may find themselves at the wrong end of an award granted at the CCMA or Bargaining Council.
Having an experienced and independent chairperson at a disciplinary inquiry ensures that the requirements of a fair procedure are complied with, and while a chairperson does not have to have formal legal training, it is required that the Chairperson be independent and impartial without any bias.
It is important that the Chairperson is not influenced by any relationship between him/herself and the employer or the employee and is preferably not an employee of the employer that instituted disciplinary proceedings. The Chairperson must base their decision purely on the evidence submitted by the parties during the disciplinary inquiry and provide reasons for his/her decision. The Chairperson should have no prior knowledge of the details of the case.
SARS v CCMA and others (C683/11)  ZALCCT
In SARS v CCMA and others (C683/11)  ZALCCT, the Court had to decide whether the Employer can overturn a decision given by a Chairperson in a disciplinary inquiry. The Chairperson ruled that a Final Written Warning be issued after the employee was found guilty of downloading pornographic material. The employer felt that the sanction was inappropriate and accordingly dismissed the employee out of their own accord. The CCMA found in favour of the employee, namely that the dismissal was unfair. The employer appealed to the Labour Appeal Court which found that an employer cannot change a Chairperson’s decision but could take it on review if they are not satisfied with the outcome.
BMW vs Van Der Walt (JA10/99)  ZALAC
In essence, an employer cannot simply overturn a Chairperson’s decision as it would be procedurally unfair. This principle, however, is not set in stone as the Labour Appeal Court found in BMW vs Van Der Walt (JA10/99)  ZALAC that a second disciplinary inquiry may be held only if it would be fair to both the employer and the employee, for example, if the Chairperson made the wrong decision regarding a sanction. It must also be taken into account that, if a Chairperson’s decision is blatantly wrong, an employer can overturn such a decision depending on the surrounding circumstances.
Gubeve v NCR (21151/2018)  ZAGPPHC 288
An Employer must give a Chairperson a specific mandate to either make a decision with regard to the sanction or merely a recommendation in order to avoid confusion. In Gubeve v NCR (21151/2018)  ZAGPPHC 288, the employer overturned the Chairperson’s decision based on their policy which makes provision for such. The Court held that if an employer can overturn a decision of an impartial Chairperson, there would be no point in conducting a disciplinary inquiry.
It is important that employers consider the financial cost if an award is made against them by the CCMA based on an inexperienced or biased Chairperson. Invictus is able to provide employers with an experienced and independent chairperson to ensure a sound procedure is followed during all disciplinary inquiries.
Contact Invictus on 0861 737 263 for us to assist you through the process.