CCMA Guidelines Allow Attorneys At Hearings

But chairpersons must be unbiased!

The CCMA Guidelines: Misconduct Arbitrations (The Guidelines) states that it is not unfair for employers to use third parties such as attorneys to chair disciplinary hearings. However, these highly important guidelines do not give disciplinary hearing chairpersons the right to conduct such hearings in a biased manner. The Guidelines oblige Commissioners to assess whether workplace dismissals are fair or unfair, and it is difficult to see how such dismissals can be fair if the presiding officer is biased and if it is shown that such bias results directly in prejudice to the employee.

In the case of Chirwa vs Transnet Ltd (2009 4  BALR 350) the dismissal was found by the CCMA to be procedurally unfair. This was due to the bias of the presiding officer of the disciplinary hearing, whose relationship with the accused employee was fraught with animosity.

Employers are still falling short as regards the employees’ right to an impartial hearing chairperson. The reasons for this include:

• The employer’s intention is to hold a kangaroo court and get the employee fired regardless of the consequences  OR
• Those employees assigned the task of chairing hearings are not properly trained  OR
• The employer does not understand what constitutes bias.

There are in fact a number of factors that may suggest that the hearing chairperson could be biased. These include, amongst others, situations where the chairperson:

• has previously had a clash with the accused employee
• has prior knowledge of the details of the case
• unreasonably turns down requests from the employee for representation, witnesses, an interpreter or other requirements
• makes a finding that is unsupported by the facts brought before the hearing.

What does not necessarily constitute bias is the relationship of the chairperson to the employer’s representative or refusal by the chairperson to allow legally impermissible evidence, to hear irrelevant testimony or to allow unjustified adjournments.

However, it is extremely difficult for a hearing chairperson to distinguish fairly between reasonably and unreasonably turning down the accused’s request for a witness, representative, adjournment or other requirement. The ability to make rulings in this regard that will stand up in court can only be acquired via substantial formal training and solid experience of the hearing chairperson.

In the case of FAWU obo Sotyato vs JH group Retail Trust (2001, 8 BALR 864) the employee confessed to having stolen two bottles of beer from the employer and to drinking one of them during working hours. The arbitrator did not accept the confession as valid and also found that the chairperson of the hearing was biased. This was because the chairperson had caught the accused employee with the beers and had been involved in drawing up the charges. This created a reasonable apprehension of bias and rendered the dismissal procedurally unfair. The employee was reinstated with full back pay.

In Slabbert vs Ikhwezi Truck Tech (Pty) Ltd (2008, 1 BALR 75) the employee alleged that the chairperson of the disciplinary hearing had been biased because he had wanted the employee’s job for himself. However, the arbitrator found the dismissal to be fair because:

• The employee had provided no proof of the allegation that the chairperson wanted the employee’s job; and
• There was no evidence that the chairperson had behaved unfairly in conducting the disciplinary hearing or in arriving at his decision.

In order to ensure that employers do not lose cases due to chairperson bias or alleged bias at disciplinary hearings employers must ensure that:

• hearing chairpersons have no involvement in or knowledge of the case prior to the hearing

• hearing chairpersons have a solid understanding as to what constitutes apprehension of bias

• they contract in a labour law specialist to chair hearings where the employer has no internal official with the necessary qualifications and knowledge to carry out the task properly.

To book for our 7 June seminar in Johannesburg on CHAIRING DISCIPLINARY HEARINGS please contact Ronni via [email protected] or 0845217492.