Can a Chairperson of a Disciplinary Hearing Represent the Employer at the CCMA?

A chairperson of a disciplinary hearing cannot, in practice, represent the employer at the CCMA in the same matter. The CCMA Commissioner has the discretion under rule 25(1) of the CCMA Rules to refuse representation that would compromise the fairness of the proceedings, and the presiding Commissioner will almost always refuse to allow the same person to appear both as the internal adjudicator of the employer’s disciplinary process and as the employer’s representative in the subsequent arbitration. The short answer is therefore no — the chairperson either steps back from representation at the CCMA, or, more commonly, the employer appoints a different person to each role from the outset.

The Short Answer

• A chairperson of a disciplinary hearing should not represent the employer at the CCMA in the same matter — the roles are functionally incompatible in practice.
• The CCMA Commissioner has discretion under rule 25(1) of the CCMA Rules to permit or refuse representation, and routinely refuses where the same person played both roles.
• The dominant concern is the appearance and reality of impartiality at the internal hearing, which collapses if the chairperson is later the employer’s voice in front of the Commissioner.

Why the Two Roles Are Incompatible

The chairperson’s role at a disciplinary hearing is to preside impartially, weigh evidence on a balance of probabilities, and determine both guilt and sanction. Even when appointed and paid by the employer, the chairperson must act as a neutral arbiter — a duty that comes from Schedule 8 of the Labour Relations Act 66 of 1995 (the Code of Good Practice: Dismissal).

The employer’s representative at the CCMA, by contrast, is an advocate. They argue the employer’s version of events, lead evidence, cross-examine the employee, and defend the substantive outcome reached at the internal hearing.

Asking the same individual to play both roles turns the internal disciplinary hearing into a staged process. The Commissioner will almost always treat this as a direct conflict of interest, whether or not it is raised by the employee or their representative. For employers, this is the gap that Burger Huyser Attorneys’ Labour Law practice is set up to close — separating the two roles at the planning stage rather than after an objection has derailed the arbitration date.

The Legal Framework: Section 138, Rule 25, and the Commissioner’s Discretion

The question sits at the intersection of three layers of authority:

1. Section 138 of the Labour Relations Act 66 of 1995 (LRA) governs the conduct of arbitration proceedings before the CCMA, with the Commissioner presiding as the arbiter of both fact and procedural fairness. A reference to the Act is available via the Department of Employment and Labour.
2. Rule 25(1) of the CCMA Rules gives the Commissioner discretion to decide whether a party may be represented and by whom, subject to the overarching requirement that the proceedings be conducted fairly. The current Rules are published by the CCMA.
3. Schedule 8 of the LRA sets out the procedural fairness requirements for disciplinary hearings, including the appointment of an impartial chairperson.

The internal disciplinary process and the CCMA arbitration are governed by the same statute but operate as two separate forums. The Commissioner at the CCMA is not bound by what the internal chairperson decided on the merits — they rehear the matter — but the Commissioner does scrutinise whether the internal process was fair. A chairperson who later steps in as the employer’s voice undermines that fairness from the outset.

What the CCMA Commissioner Will Typically Do

In practice, Commissioners will refuse to allow a chairperson who presided at the internal hearing to then represent the employer at the CCMA arbitration in the same matter, regardless of whether the proposed representative is a legal practitioner or a non-attorney designated representative.

The objection is usually raised by the employee or their representative, but the Commissioner retains inherent discretion to raise it of their own motion. The refusal is not a personal ruling against the chairperson — it is a structural ruling about the fairness of the proceedings. In the worst case, an unaddressed procedural unfairness can be taken on review to the Labour Court, which is a separate and more expensive layer of risk for the employer.

The Distinction: Chairperson vs. The Employer’s Representative

Role	Function	Posture toward the employer
Chairperson (internal disciplinary hearing)	Preside, weigh evidence, determine guilt and sanction	Neutral — appointed by the employer but required to act impartially
Employer’s representative (CCMA arbitration)	Argue the employer’s case, lead evidence, cross-examine the employee	Advocate — speaks for the employer’s version of events

The dividing line between these two roles is posture, not paperwork. Both are engaged by the employer; the difference is who they are speaking for at the moment.

When the Same Person Could (in Theory) Appear

There is a narrow set of circumstances in which the conflict does not bite:

• If a legal practitioner is briefed purely as the employer’s representative at the CCMA — and did not preside at the internal hearing — there is no conflict. The exception is narrow: it requires the same person to be brought in fresh for the CCMA, not carried over from the internal hearing.
• The CCMA’s discretion is preserved, but the Commissioner will generally allow representation by a qualified legal practitioner or designated representative who has not previously worn the chairperson hat on the same matter.

For employers, the implication is straightforward: bring the labour law attorney in at the CCMA stage, and let the attorney instruct the internal chairperson as a witness if their evidence is needed.

What to Do Instead: Practical Steps for the Employer

1. Appoint a different person as the employer’s representative at the CCMA from the start. This is typically a labour law attorney, a union representative, or a trained HR professional — not the person who chaired the internal hearing.
2. Keep the chairperson separate from the CCMA representative. The cleanest separation is to brief the labour law attorney first and let the attorney instruct the chairperson as a witness if needed.
3. Recognise that the conflict still applies if the chairperson is a legal practitioner. Holding an LLB does not waive the impartiality expectation — the Commissioner’s discretion is structural, not qualification-based.
4. Document the appointment separately in writing. Each person’s role and remit should be set out at the engagement stage so the employer can demonstrate the separation if the Commissioner asks.

Need to confirm the right separation for your matter? Contact Burger Huyser Attorneys’ Labour Law practice. The Centurion branch is the practical intake point for Centurion, Pretoria, and Midrand employers (012 644 4990, after-hours 069 522 7696); the Linden head office handles Johannesburg-side matters (011 888 0246). Specialist consultant Marius Ferreira oversees employer-side representation, disciplinary hearing chairing, and Labour Court work, and can be briefed in tandem with the firm’s litigators when procedural-fairness risk is high.

Burger Huyser Attorneys’ Labour Law Practice

Labour Law is a listed practice area at Burger Huyser Attorneys, covering CCMA disputes, disciplinary hearings, and Labour Court matters. Specialist consultant Marius Ferreira carries the firm’s overall labour law strategy across Gauteng. The Centurion branch fields much of the CCMA representation work for employers in the Pretoria, Centurion, and Midrand corridor, with the Linden head office handling Johannesburg-side matters.

The separation between an internal chairperson and a CCMA representative is one of the most common procedural-fairness pitfalls for employers; flagging it at the briefing stage is how the firm’s labour team keeps the matter from being derailed on a rule 25(1) objection later.

Jurisdictional Note for Gauteng Employers

The CCMA runs through regional offices across South Africa. The Johannesburg CCMA office covers the City of Johannesburg, Ekurhuleni, Sedibeng, and the West Rand; the Tshwane office covers the City of Tshwane, including Centurion and the surrounding corridor. Internal disciplinary hearings and CCMA arbitrations are two separate forums operating under the same statute but with different procedural rules — and that structural separation is exactly why the same person cannot credibly play both roles. For Centurion, Pretoria, and Midrand employers, the practical intake point is the Centurion branch (Block 12, Unit 34, First Floor, Central Office Park, 257 Jean Avenue, Centurion, 0157); the Johannesburg-side intake point is the Linden head office (49 First Avenue, Linden, Randburg, 2195). Current CCMA rules and procedural notices are published at ccma.org.za.

Frequently Asked Questions

Can a chairperson of a disciplinary hearing represent the employer at the CCMA in the same matter?

No — the CCMA Commissioner will almost always refuse to allow it under rule 25(1) of the CCMA Rules, because the chairperson was the internal adjudicator and is now the employer’s advocate, which is a structural conflict of interest. The employer should appoint a separate representative at the CCMA from the outset.

Is the rule different if the chairperson is a legal practitioner?

No — being a legal practitioner does not waive the impartiality expectation. The Commissioner still has discretion to refuse representation where the same person played both roles, and the conflict-of-interest objection is structural, not based on qualification.

Can the chairperson appear as a witness at the CCMA rather than as the representative?

Yes — this is the common cleanest separation. The chairperson gives evidence as a witness to what happened at the internal hearing, and the employer’s separately-instructed representative handles the running of the case. This is the standard approach for employer-side representation.

What happens if the employer proceeds with the same person as both?

The Commissioner will typically refuse representation on their own motion or on the employee’s objection, and the arbitration may be postponed to allow the employer to instruct a new representative. In the worst case, the procedural unfairness can be raised on review to the Labour Court.

Can the chairperson appear at the CCMA in a different matter involving the same employer?

Yes — the conflict is specific to the matter in which the person was the internal adjudicator. A chairperson who presided over one disciplinary hearing can represent the employer at the CCMA in a different, unrelated matter in the future, provided the Commissioner’s discretion is not otherwise engaged.

Where can an employer get labour law help with CCMA representation in Gauteng?

Burger Huyser Attorneys’ Labour Law practice covers CCMA representation, disciplinary hearings, and labour court work through the firm’s Gauteng branches. The Centurion branch (012 644 4990) is a practical intake point for Centurion, Pretoria, and Midrand employers; the Linden head office (011 888 0246) handles Johannesburg-side matters.