What are the Powers of the Chairperson of a Disciplinary Hearing?

The chairperson of a disciplinary hearing in South Africa is the person appointed (or elected) by the employer to preside over the enquiry into alleged misconduct, and their powers are set out by the Labour Relations Act 66 of 1995 read with Schedule 8 (the Code of Good Practice on Dismissal) and the audi alteram partem rule of natural justice. The chairperson controls the procedure of the hearing, decides what evidence to admit, may question and call witnesses, decides on procedural objections and adjournments, makes a finding on guilt, and determines the appropriate sanction — but they must do so independently, must give the employee a fair opportunity to be heard, may not act as the prosecutor, and must recommend a sanction that is proportionate to the misconduct and consistent with the employer’s disciplinary code.

Where the Chairperson’s Powers Come From

The chairperson does not derive their authority from a generic “managerial” discretion. The powers are anchored in statute and in the rules of natural justice that bind every decision-maker who can affect a person’s livelihood.

Source	What it provides
Labour Relations Act 66 of 1995 (LRA), section 188	The substantive fairness test — a dismissal must be for a fair reason (conduct, capacity, or operational requirements) and effected in accordance with a fair procedure.
Schedule 8 to the LRA (Code of Good Practice on Dismissal), Items 4 to 7	The procedure the employer should follow in a misconduct dismissal, including the conduct of the disciplinary hearing itself.
Audi alteram partem rule of natural justice	The right to be heard — a constitutional and common-law minimum that overrides any conflicting term in the employer’s disciplinary code.
The employer’s own disciplinary code and employment contract	May supplement the statutory minimums but cannot reduce or override them.

Items 4 to 7 of Schedule 8 deal specifically with the disciplinary hearing: notice of the allegations, the right to a reasonable time to prepare, the right to be present, the right to be heard, the right to be assisted by a trade union representative or a fellow employee, and the right to question witnesses. The chairperson is the person tasked with making those rights operational on the day.

What the Chairperson Is — and Is Not

The chairperson is an impartial decision-maker. They are not the employer’s prosecutor, even though they may question witnesses in order to test the evidence. They are not bound by the strict admissibility rules of a courtroom, but they are bound by the audi alteram partem rule.

• The chairperson is usually a senior manager, an HR professional, or an external chairperson brought in specifically for independence.
• The chairperson may, and often should, allow the employee to be represented (by a union official, a fellow employee, or in some cases an attorney) where the alleged misconduct could lead to dismissal.
• The chairperson applies an “is the evidence reasonably reliable?” test, not a courtroom admissibility test — but they must still record what weight was given to each piece of evidence.
• The chairperson may not lead the case against the employee, may not pre-judge the outcome, and may not take instructions from management about what the finding should be.

The Chairperson’s Powers During the Hearing

Once the hearing opens, the chairperson actively steers it. The following powers are recognised in practice and supported by Schedule 8 and the LRA.

Power	What it allows the chairperson to do
Control of procedure	Decide the order of evidence, when to take breaks, whether to allow opening statements, and how cross-examination is structured.
Evidence	Decide what documents and testimony to admit, may limit repetitive or irrelevant questioning, and may take evidence on their own initiative where it is genuinely material.
Witnesses	Question any witness, recall a witness for further clarification, and call a witness on their own motion if the witness can materially assist.
Procedural objections	Rule on objections raised by either side — relevance, hearsay, unfairness.
Adjournments	Decide whether to grant a request for an adjournment, balancing the prejudice to either side against the need for a fair hearing.
Findings	Decide whether the employee is guilty of the misconduct as charged, on a balance of probabilities.
Sanction	Determine or recommend the appropriate disciplinary sanction, having regard to the disciplinary code, the gravity of the misconduct, the employee’s record, and the principle of proportionality.

The Limits on the Chairperson’s Powers

The powers above sit alongside hard limits. A chairperson who oversteps is just as exposed as one who fails to act.

• The chairperson cannot refuse the employee a reasonable opportunity to present their case — denying this taints the procedural fairness of any subsequent dismissal.
• The chairperson cannot act on instructions from management about the outcome — the requirement for impartiality is a substantive fairness requirement, not a procedural nicety.
• The chairperson cannot impose a sanction that is disproportionate to the misconduct — a finding of guilt for minor misconduct with a dismissal sanction is vulnerable at the CCMA on both substantive and procedural fairness grounds.
• The chairperson cannot deny the employee the right to question adverse evidence or to lead their own evidence (a corollary of audi alteram partem).
• The chairperson cannot refuse to give reasons for the finding and sanction when asked — silence on reasons makes the outcome more difficult to defend on review.

The Chairperson’s Decision: Format and Documentation

A chairperson who runs a technically correct hearing but produces no written record will find the record the weak link on review. The written determination is what the CCMA arbitrator or Labour Court judge will read first.

1. State the charge as it was formulated and notified to the employee.
2. List the evidence considered (documents, witness testimony, exhibits).
3. Record the finding on guilt with reasons — why one version of events was preferred over another.
4. Record the sanction imposed with reasons — why this sanction, in this range, is proportionate.
5. Record any procedural irregularities raised at the hearing and how they were resolved.
6. Confirm at each material stage that the audi alteram partem rule was observed — notice of the charge, opportunity to respond, opportunity to call witnesses, opportunity to cross-question.

Where the sanction is dismissal, the written determination becomes the central record at any subsequent CCMA referral under section 191 of the LRA.

When the Chairperson Gets It Wrong: What Happens Next

An employee dismissed after a procedurally or substantively unfair hearing has a defined route to challenge the outcome.

Step	Forum	Statutory basis	Time limit
Refer the unfair-dismissal dispute	CCMA (or a relevant bargaining council)	Section 191 of the LRA	Within 30 days of dismissal
CCMA arbitration — fairness test	CCMA arbitrator	Sections 188 and 191 of the LRA, read with Schedule 8	Concluded as soon as reasonably possible after referral
Review of a CCMA award	Labour Court (a division of the High Court)	Section 145 of the LRA	Within six weeks of the award being issued
Remedies if dismissal found unfair	CCMA or Labour Court	Section 193 of the LRA	Reinstatement, re-employment, or compensation (up to 12 months’ remuneration, or 24 months for automatically unfair dismissal)

It is the CCMA’s published arbitration awards and the Labour Court’s reported judgments — not the chairperson’s own ruling — that ultimately define what counts as a fair exercise of the chairperson’s powers in practice.

Frequently Asked Questions

Who can be a chairperson at a disciplinary hearing in South Africa?

The employer chooses the chairperson — typically a senior manager who was not involved in the incident under enquiry, an HR professional, or an external chairperson appointed for independence. The chairperson must be impartial and have no personal interest in the outcome. There is no statutory requirement that the chairperson be a legal professional, but the more serious the alleged misconduct and the more likely the sanction is dismissal, the more advisable it becomes to appoint an experienced independent chairperson.

Can the chairperson refuse to allow the employee legal representation?

It depends on the seriousness of the misconduct. Where the alleged misconduct could lead to dismissal, the right to representation is a material component of procedural fairness; many employers’ disciplinary codes and most CCMA arbitrators expect at least the right to be represented by a fellow employee or trade union official. Full legal representation is not automatically required at an internal disciplinary hearing, but unreasonably refusing it in a complex or dismissible case can render the procedure unfair.

Can the chairperson dismiss an employee without following the disciplinary code?

No. The disciplinary code is part of the employee’s terms of employment, and any departure from it must be justified on substantive grounds. A chairperson who deviates from the code’s prescribed sanction range without recording a reasoned basis for the deviation risks a finding that the dismissal was substantively unfair at the CCMA.

Can the chairperson be the same person who reported or investigated the incident?

No, in any meaningful sense — the chairperson must be impartial. A person who was the complainant, the investigator, or otherwise directly involved in the incident cannot credibly sit as chairperson. If such a person presided, the CCMA would almost certainly find a procedural (and often a substantive) fairness problem.

Does the chairperson have to give written reasons?

Yes, in practice — the chairperson should always produce a written determination covering the charge, the evidence considered, the finding on guilt with reasons, and the sanction with reasons. The written record is the single most important document if the matter is referred to the CCMA, because it is what the arbitrator will test the fairness of the dismissal against.

What is the difference between procedural and substantive fairness, and which does the chairperson decide?

Procedural fairness is about whether the hearing was conducted fairly — proper notice, the right to be heard, the opportunity to question evidence and call witnesses, an impartial chairperson. Substantive fairness is about whether dismissal was an appropriate sanction for the misconduct in question, having regard to the employee’s record, the gravity of the misconduct, and the proportionality of the sanction. The chairperson decides both, and both must be present for a dismissal to survive CCMA scrutiny.

Can the chairperson rely on hearsay evidence?

Yes — disciplinary hearings are not bound by the strict rules of evidence that apply in a court. The chairperson may admit hearsay, but should give less weight to it where the source cannot be tested. Where hearsay is the decisive evidence for a finding of guilt, the procedural fairness of the hearing is at risk.

What happens if the chairperson’s decision is challenged at the CCMA?

The employee can refer an automatically unfair or unfair dismissal dispute to the CCMA within 30 days of dismissal. The arbitrator will look at the chairperson’s written record, the disciplinary code, and the LRA and Schedule 8 to decide whether the dismissal was substantively and procedurally fair. If not, the remedies are reinstatement, re-employment, or compensation (up to 12 months’ remuneration, or 24 months for automatically unfair dismissals).

Disciplinary hearings are technical, and the consequences of an unfair process are real — dismissal findings are routinely overturned at the CCMA where the chairperson’s procedure or sanction falls short of the LRA and Schedule 8. Burger Huyser Attorneys’ labour-law practice, led by specialist consultant Marius Ferreira and supported across the firm’s Gauteng branches, advises employers on chairing disciplinary hearings, drafts disciplinary codes, represents employees at internal hearings, and runs CCMA referrals and Labour Court review proceedings. For a confidential conversation about a specific disciplinary matter, contact the Linden head office on 011 888 0246 or the Centurion branch on 012 644 4990; both book initial consultations on a per-instruction basis.