Key Responsibilities of a Chairperson in a Disciplinary Hearing

A chairperson in a South African disciplinary enquiry has five interlocking responsibilities: ensuring procedural fairness (the audi alteram partem rule), presiding impartially over the hearing, evaluating evidence on the balance of probabilities, deciding on guilt based on that evidence, and — if guilt is found — imposing a sanction that is proportionate to the misconduct and the employee’s disciplinary record. These duties derive from the Labour Relations Act 66 of 1995, with Item 7 of Schedule 8 (the Code of Good Practice on Dismissal) setting the minimum procedural requirements and section 188 setting the substantive fairness test for dismissals. The chairperson is not the employee’s representative, the employer’s prosecutor, or a rubber stamp for management — they are the independent decision-maker whose conduct of the enquiry and quality of the ruling determine whether the dismissal will withstand scrutiny at the CCMA or the Labour Court.

The Statutory Framework: Schedule 8, Item 7, and Section 188 of the LRA

The Labour Relations Act 66 of 1995 (LRA) is the governing statute for every disciplinary enquiry in South Africa that falls outside the narrow employment-contract exception, and it sets both the procedural and the substantive standards an enquiry must meet. The chairperson’s responsibilities sit between two pillars of the Act: the procedural fairness component crystallised in Item 7 of Schedule 8, and the substantive fairness test in section 188.

Pillar	Source	What it requires
Procedural fairness	Item 7 of Schedule 8 (Code of Good Practice on Dismissal)	Minimum procedural steps the employer must follow before any employee can be dismissed for misconduct
Substantive fairness	Section 188 of the LRA	A dismissal must be for a fair reason (conduct, capacity, or operational requirements) and effected in accordance with a fair procedure

Item 7 of Schedule 8 sets out the procedural minimums that every enquiry must clear. The employee must be given:

• notice of the allegations, in a language the employee understands;
• a reasonable time to prepare a response to the allegations;
• the right to be present at the hearing;
• the right to be heard and to lead evidence in their own defence;
• the right to be assisted by a trade union representative or a fellow employee; and
• the right to question witnesses who give evidence against them.

Section 188 of the LRA then asks whether the dismissal was substantively fair — that is, whether the employer had a fair reason (misconduct, incapacity, or operational requirements) and followed a fair procedure. The chairperson is the person on whom both duties ultimately land: a procedurally impeccable hearing that produces an inexplicably harsh sanction (or vice versa) will still be set aside on review.

Pre-Hearing Duties: Preparation Before the Enquiry Begins

Most unfair-dismissal findings begin with errors that were baked in before the hearing started. The chairperson’s pre-hearing duties exist to make sure that, when the enquiry opens, the foundation is already sound.

1. Confirm the appointment and authority of the chairperson. The letter of appointment should record who appointed the chairperson, the scope of the authority delegated, and the date by which the ruling must be delivered.
2. Review the charge sheet, the employee’s disciplinary record, and any prior warnings. The chairperson must understand the alleged misconduct in context — what was charged, what was previously warned about, and what the policy says the consequence should be.
3. Read all the documentary evidence — witness statements, policies, prior disciplinary records, and relevant communications — before the hearing starts. Preparation at home is far more effective than reading on the day.
4. Check the procedural prerequisites: was the employee given proper written notice, was there a reasonable interval between notification and the hearing, are the charges clear, specific, and formulated in language the employee understands?
5. Decide whether the hearing should proceed or be postponed. A postponement is appropriate where the employee is ill, the chosen representative cannot attend, or new evidence has emerged late and the employee has not had time to consider it.

Duties During the Hearing: Running a Fair Enquiry

Once the hearing opens, the chairperson’s role is to manage the process so that both sides have a fair opportunity to put their case. The chairperson is not a spectator — they actively steer the proceedings.

• Open the hearing by confirming the parties present, reading the charges aloud, confirming the employee’s understanding of the charges and of the right to representation, and recording any objections to jurisdiction or procedure at the outset.
• Manage the order of proceedings. The usual sequence is: the employer’s representative leads evidence and calls witnesses; the employee cross-examines; the employee leads evidence in response or mitigation; and both sides make closing arguments.
• Apply the rules of evidence flexibly. Disciplinary enquiries are not bound by the strict rules of a court of law, but the chairperson may exclude irrelevant, repetitive, or unduly prejudicial evidence.
• Ensure the employee has a full opportunity to state their case, call witnesses, and challenge the employer’s evidence — this is the operational meaning of audi alteram partem (hear the other side).
• Record or arrange for the recording of the proceedings. A written record is essential if the matter proceeds to the CCMA or Labour Court, and the chairperson must ensure one is produced.

The Duty of Impartiality

Impartiality is the most visible of the chairperson’s obligations. A chairperson who is perceived as having pre-judged the matter will see the ruling overturned regardless of how carefully the rest of the process was run.

• The chairperson must approach the hearing with an open mind and may not have pre-formed views on guilt before evidence is led.
• The chairperson should not have been involved in the investigation, the decision to charge, or any prior disciplinary steps against the employee. Involvement in any of those stages is a ground for recusal.
• Where there is a real or perceived risk of bias — for example, where the chairperson is a direct line manager of the employee, a witness in the matter, or has a personal relationship with a party — recusal is the appropriate response.
• The legal test for bias is whether a reasonable, informed observer would conclude that the chairperson might not bring an impartial mind to the matter.

Evaluating Evidence and Deciding on Guilt

Once the evidence is in, the chairperson’s task is to weigh it and reach a decision on guilt. Disciplinary enquiries are not courts of law, but they are not arbitrary either — the decision must be evidence-driven and reasoned.

Element	Standard
Standard of proof	Balance of probabilities — more likely than not. Lower than the criminal standard of beyond reasonable doubt, but still requires evidence, not suspicion or conjecture.
Onus of proof	The employer carries the onus to prove the misconduct, even though the chairperson makes the finding.
Weight of evidence	Findings must rest on evidence actually led at the hearing; information from the investigation file that was not tested in cross-examination carries materially less weight.
Benefit of the doubt	If the evidence is insufficient, internally contradictory, or evenly balanced on the decisive issue, the employee is entitled to the benefit of the doubt.

The chairperson assesses the credibility, weight, and relevance of the evidence led, decides which version of events is more probable, and — critically — articulates the reasoning in the ruling. A finding of guilt without reasoning is almost guaranteed to be set aside on review.

Determining an Appropriate Sanction

A finding of guilt is not the end of the enquiry. The chairperson must then decide what sanction is appropriate, and that decision is just as susceptible to challenge as the guilt finding itself.

• Consider aggravating and mitigating factors: the nature and seriousness of the offence, the employee’s length of service, prior disciplinary record, personal circumstances, the impact on the employer, the consistency of treatment with other employees in comparable situations, and the need for deterrence.
• Apply the proportionality test. Dismissal is reserved for serious misconduct (such as dishonesty, violence, or gross insubordination), repeated misconduct after progressive discipline, or conduct that destroys the employment relationship.
• Consider alternatives to dismissal. Counselling, a written warning, a final warning, suspension without pay, demotion, or a last-chance agreement must be considered and either adopted or expressly rejected with reasons.
• A first offence of minor misconduct generally does not warrant dismissal; serious misconduct may justify dismissal even on a first offence, but only where the employer’s policy and the facts support it.

Writing the Ruling

The written ruling is the chairperson’s main protection against an unfair-dismissal claim. If the CCMA commissioner or Labour Court judge can follow the reasoning and see that the process was fair and the decision substantively reasonable, the dismissal is likely to stand.

1. Record the charges, the evidence led, the findings of fact, the decision on guilt, and — if applicable — the sanction and the reasons for it.
2. Address the employee’s defence and explain why it was accepted or rejected, point by point, rather than in a single conclusory paragraph.
3. Cross-reference the relevant clause of the employer’s disciplinary code and policy, the applicable provisions of Schedule 8 and section 188 of the LRA, and any authorities that the chairperson relied on.
4. Make the ruling capable of standing on its own. A reasoned ruling that an arbitrator can read and follow is the chairperson’s single best defence against an unfair-dismissal referral.

Post-Hearing Duties

The chairperson’s responsibilities do not end when the ruling is delivered. There are four practical close-out duties that must be attended to:

• Communicate the ruling to the employee, typically at the conclusion of the hearing or within a short, defined period set out in the disciplinary policy.
• Ensure the ruling is reduced to writing, signed, dated, and filed in the employee’s record.
• Where the employee is dismissed, ensure the proper termination documentation — certificate of service, pay calculations, accrued leave, notice pay — is issued in accordance with the Basic Conditions of Employment Act and the employment contract.
• Remain available to give evidence and to produce the record if the matter proceeds to conciliation at the CCMA, to arbitration, or to the Labour Court.

Common Pitfalls That Lead to Findings of Procedural Unfairness

Most findings of procedural unfairness trace back to a small set of recurring errors. Chairpersons who internalise the list below will avoid the majority of the traps:

• Failing to give the employee adequate written notice of the charges or the hearing date.
• Refusing to allow the employee to call witnesses or to cross-examine the employer’s witnesses on material issues.
• Allowing the chairperson to double as the prosecutor or to give evidence in the matter.
• Making credibility findings without articulating the reasons, leaving the ruling unable to be reviewed on appeal.
• Imposing dismissal for misconduct that does not justify it under the employer’s own disciplinary code or under Item 7 of Schedule 8 read with section 188.

When to Bring in an External Chairperson

For most serious-misconduct hearings, the cost of an external chairperson is small compared to the cost of a procedurally defective dismissal. Specialist chairing is strongly advisable where:

• the alleged misconduct is serious and dismissal is a likely outcome;
• the internal candidate (line manager, HR manager) was involved in the investigation or the decision to charge, or has a personal connection to the employee;
• the hearing involves a shop steward, senior manager, or an employee covered by category-specific procedural protections (for example, those protected by the Protected Disclosures Act or by the LRA’s automatic unfair-dismissal provisions).

Burger Huyser Attorneys’ labour-law practice, led by specialist consultant Marius Ferreira, advises employers and employees across Gauteng on disciplinary enquiries — from pre-hearing preparation and procedural compliance reviews, through chairing or observing hearings, to drafting rulings and representing parties at the CCMA and Labour Court. The firm chairs and observes enquiries from its Linden head office (49 First Avenue, 011 888 0246) and its Centurion branch (Block 12, Unit 34, First Floor, Central Office Park, 257 Jean Avenue, 012 644 4990), supported by attorneys across the other Gauteng branches.

If you are an employer preparing for a serious-misconduct enquiry, an HR professional needing an experienced chairperson for a hearing, or an employee responding to disciplinary charges, Burger Huyser Attorneys’ labour-law team can assist. The firm chairs and observes disciplinary enquiries across Gauteng, advises on procedural compliance under Schedule 8 of the LRA, drafts or reviews rulings, and represents both employers and employees at the CCMA and Labour Court. Contact the Centurion branch on 012 644 4990 or the Linden head office on 011 888 0246 to discuss the matter before the hearing date is set.

Frequently Asked Questions

What is the standard of proof in a South African disciplinary enquiry?

The standard of proof in a disciplinary enquiry is the balance of probabilities — more likely than not. This is lower than the criminal standard of beyond reasonable doubt, but the chairperson’s finding must still rest on evidence actually led at the hearing, not on suspicion or conjecture. If the evidence is insufficient or evenly balanced on the decisive issue, the employee is entitled to the benefit of the doubt.

What does Item 7 of Schedule 8 require before an employee can be dismissed?

Item 7 of Schedule 8 (the Code of Good Practice on Dismissal) sets the minimum procedural requirements for a misconduct dismissal. The employee must be given notice of the allegations in a language they understand, a reasonable time to prepare, the right to be present at the hearing, the right to be heard and to lead evidence, the right to be assisted by a trade union representative or fellow employee, and the right to question witnesses.

Can a line manager chair a disciplinary hearing?

A line manager can chair a disciplinary hearing in principle, but it is rarely advisable. The chairperson must be impartial and must not have been involved in the investigation, the decision to charge, or any prior disciplinary steps against the employee. Where the manager was involved in any of those stages, or has a personal relationship with a party, recusal is the appropriate response and an external chairperson is the safer route.

What must the chairperson’s written ruling contain?

The written ruling must record the charges, the evidence led, the findings of fact, the decision on guilt, and — if applicable — the sanction and the reasons for it. The ruling must address the employee’s defence and explain why it was accepted or rejected, point by point, and should cross-reference the relevant clause of the employer’s disciplinary code, the applicable provisions of Schedule 8 and section 188 of the LRA, and any authorities the chairperson relied on. A well-reasoned ruling is the chairperson’s main protection against an unfair-dismissal claim.

Where is a dismissal challenged if the employee alleges unfair dismissal?

An employee who alleges unfair dismissal may refer the dispute to the CCMA for conciliation and, if unresolved, for arbitration. The Labour Court has jurisdiction to review CCMA arbitration awards and to hear claims that fall outside the CCMA’s jurisdiction. The chairperson should write the ruling with the expectation that it may be tested at either forum.