Deciding on a disciplinary hearing chairperson can brake or make you.
It is a world wide fact that in business we all want to cut costs. There are many ways to cut costs but not by using any available unqualified and inexperienced person to chair your disciplinary hearings. Chances are you will spend more instead of saving a little. Many small to medium sized companies use senior employees to chair their hearings. There is nothing wrong with this, it is actually excellent in that available resources are stretched to save costs. Challenge with this comes where no one is trained or experienced in the organisation to chair disciplinary hearings. In such circumstances I assure you, you going to need help form experts. As a small or medium sized company budget can be very tight to get a legal expert, consultants are there to assist. In some industries you can also get help from Bargaining Council and/or the CCMA. For cost saving sake it is always better to compare costs and quality of service.
Chairing a disciplinary hearing is a very “easy” task given that there is a written procedure in place to guide disciplinary hearing chairpersons. Really? Honestly this are things i hear when i advise some of my clients. If it was this easy there wouldn’t exist courses offered to train managers to properly chair disciplinary hearings. To simplify the process of chairing a hearing you need to be trained by an expert in the field. Such training can save you thousands if not millions in that you will have someone in the company that can chair the hearing and/or coach interested employees to do the same.
It is always best to have guideline in place to assist chairperson however a disciplinary hearing does not end with the hearing meeting. Post the meeting the chairperson is required to apply his mind to the facts and/or evidence presented before his/her. Such application of the mind requires understanding of Code of good practice. Code of good practice is a blueprint for chairpersons to apply when analyzing evidence presented in the disciplinary hearings. The same blue print is applied by the CCMA commissioners and our Labour Courts. Using someone who is not acquainted with this code will not save you any costs, it will cost you not only financial losses but can also cause reputation damage in circumstances where you are dealing with serious cases that have a detrimental impact on your company image. The case of Fourie & Partners Attorneys obo Mahlubandile v Robben Marine cc (2006, 6 BALR 569) is a classic warning for employers not to cherry pick chairpersons.
Most companies institute a formal disciplinary hearing in cases where there is a higher probabilities of a dismissal outcome. with that being said the next stage will follow should the dismissed employee refer the matter to the CCMA. Here you are faced with a do or die situation. The commission is likely to ask as to how you arrived at the conclusion of dismissal. This question is directed specifically to the chairperson to be specific. If your chairperson is untrained i bet getting out of this is a mission and half. I wonder if you can afford that. I previously had a case where a senior manager was requested to chair the hearing. In his sanctions he dismissed the employee for an offence that was not part of the notification to attend and/or an offence he found the accused employee guilty on. It is not that he/she was biased, he however committed the error because he did not know and or receive any training to chair the hearing.
I know you do not want to find yourself in such a situation. Do something about it. It is a business risk that needs serious consideration. You don’t want to generate revenue to donate to the CCMA or Courts by not taking this risk seriously.
- Using available untrained and inexperienced chairpersons is not a cost saving strategy but suicide.
- Training on how to chair a disciplinary hearing is a lifetime investment with never ending benefits.
- Disciplinary hearing doesn’t end in the internal hearing. Whoever chairs your hearing must be well experienced to prove procedural fairness as claims are always made of procedural unfairness.