Who Cannot Be a Chairperson at a Disciplinary Hearing?

A person cannot chair a disciplinary hearing in South Africa if they have previously been involved in the investigation, the decision to charge, or have a personal interest in the outcome; if they occupy a managerial position that makes them incapable of sitting impartially in that workplace; or if their relationship to the complainant, the accused employee, or the witnesses would reasonably give the appearance of bias. The fairness of the hearing is anchored in section 23 of the Constitution (the right to fair labour practices), section 188 of the Labour Relations Act 66 of 1995 read with Schedule 8 (the Code of Good Practice: Dismissal), and the audi alteram partem rule. A hearing presided over by an ineligible chairperson is procedurally unfair, and the usual remedy is a referral to the CCMA under section 191 of the LRA or review proceedings in the Labour Court under section 158.

The Statutory and Constitutional Anchors

Four sources of law control who can sit as chairperson, and they operate together rather than in isolation:

• Section 23 of the Constitution of South Africa guarantees every employee the right to fair labour practices. A hearing presided over by an ineligible chairperson engages that right directly, because the procedural integrity of the hearing is the means through which fairness is delivered in practice.
• The Labour Relations Act 66 of 1995 (LRA) defines “dismissal” in section 188(1) and requires a procedurally and substantively fair process. Schedule 8 (the Code of Good Practice: Dismissal), issued under section 188(4), sets the operational standard for the disciplinary process, including the appointment and conduct of the chairperson.
• The audi alteram partem rule — the right to be heard before an impartial decision-maker — applies to internal employer hearings even though they are not court proceedings. It is the underlying common-law principle that Schedule 8 and the LRA codify.
• The Basic Conditions of Employment Act 75 of 1997 (BCEA) supplies the wage, hours and notice framework that often underlies the substantive charge. The chairperson’s independence is governed by the LRA, not the BCEA, but the two statutes are read together when assessing the fairness of any dismissal.

Grounds on Which a Person Is Disqualified from Chairing

The disqualification grounds fall into a small number of recognisable categories. Each engages a different strand of the fairness standard, but they all reduce to the same question: can this person, objectively, hear the matter afresh?

Disqualification ground	Why it disqualifies	Statutory / case-law anchor
Prior involvement in the investigation	The same person cannot investigate the misconduct and then adjudicate it — the investigator’s findings cannot be revisited by an impartial mind.	Schedule 8, item 4(1) of the LRA Code of Good Practice
Prior involvement in the decision to charge	The decision to prosecute must be separable from the decision to find guilty; combining the roles collapses the separation between prosecution and adjudication.	Schedule 8; audi alteram partem rule
Direct personal interest in the outcome	A financial, reputational or career stake in the result precludes the appearance of independence.	Schedule 8, item 4(2)
Line-management role over the accused	The accused’s direct line manager is presumed to have formed a view on the conduct in issue and cannot realistically “hear it again” afresh.	Schedule 8; long-standing CCMA arbitration principle
Close personal relationship with the complainant or a key witness	A family tie, intimate partner relationship, or close personal association creates a real risk of unconscious partiality.	Common-law bias test (reasonable apprehension of bias)
Prior grievance history between chairperson and employee	A documented prior grievance — disciplinary or otherwise — gives rise to a reasonable apprehension of bias if the same person then presides.	Common-law bias test; CCMA review principles
Acting under direct instruction to find guilt	A chairperson instructed by senior management to reach a particular outcome is not independent in any meaningful sense.	Schedule 8; section 188 LRA

Categories of Person Who Typically Cannot Chair

The grounds above translate into a recognisable list of role-types. If a proposed chairperson falls into one of these categories, expect an objection to land — and expect it to stick.

• The complainant themselves — a person who laid the charge cannot then adjudicate it. They are a witness, not a presiding officer.
• A witness in the matter — anyone whose evidence the panel must weigh cannot also preside. The roles are incompatible.
• The investigating officer — the person who compiled the investigation report and made a recommendation on guilt. This is the most common objection, and it almost always succeeds.
• The direct line manager of the accused — even where the manager did not personally investigate, the operational relationship undermines independence.
• A senior executive with prior knowledge of, or involvement in, the underlying dispute — for example, the executive who authorised the formal warning that escalated into the current charge.
• A close personal relation or business partner of any party or witness — family-by-marriage, business partnership, or a financial interest in the outcome.
• An employee with an active, personal grievance against the accused at the time of the hearing — the disqualification is contextual and turns on what the chairperson brings into the room.

Where an internal candidate is unavailable or where the misconduct is serious enough that the perception of independence must be airtight, the practical answer is an external chairperson. The firm’s Labour Law practice, run through its Gauteng branches, routinely supplies and coordinates independent chairpersons for exactly these hearings — a useful route for employers who want a defensible record from the outset.

Who Can Chair — The Counter-Test

The disqualification grounds read as a list of “no’s.” The counter-test is the four positive criteria a chairperson must meet:

1. No prior involvement in the incident, the investigation or the decision to charge.
2. No personal interest in the outcome — financial, career or reputational.
3. No line-management authority over the accused in respect of the matter being heard.
4. No close personal relationship with the complainant, the accused, or any key witness that would give a reasonable observer pause.

An independent external chairperson (an attorney or labour-relations specialist with no connection to the parties) is the cleanest fit, particularly for Schedule 6 misconduct or potential-dismissal matters. A senior manager from a separate business unit, with no operational link to the accused, is sometimes acceptable in smaller organisations where no truly independent internal candidate exists — but only if the four criteria above are genuinely satisfied, not just formally asserted.

The Practical Test the Chairperson Must Apply

The eligibility question is judged objectively, not subjectively. Two tests dominate the analysis:

Reasonable apprehension of bias: would a reasonable, informed observer, properly apprised of the material facts, conclude that the chairperson’s independence was compromised?

Audi alteram partem: have both sides had a fair opportunity to put their case before a decision-maker who has not pre-judged it?

It does not matter whether the chairperson believes they can be fair. If a reasonable observer would conclude otherwise — on the documented facts — the chairperson is ineligible, and the matter must be reheard before someone else. This is the standard the CCMA and the Labour Court apply when reviewing a chairperson’s conduct after the event.

What Happens When an Ineligible Person Does Chair

A procedurally defective hearing is not automatically fatal to the substantive outcome. The practical routes are:

Route	What it does	Statutory basis
CCMA referral on procedural unfairness	The employee refers the dispute within 30 days of dismissal. The commissioner can find the dismissal substantively fair but procedurally unfair (capped compensation up to 12 months’ remuneration under section 193(1)(c)), or both substantively and procedurally unfair (capped compensation up to 24 months’ remuneration under section 193(1)(d)).	Section 191 LRA; section 193 LRA
Labour Court review	The employee brings review proceedings; the test is whether the chairperson’s decision was one that a reasonable decision-maker could not have reached.	Section 158 LRA
Rehearing before an independent chairperson	An employer that anticipates a challenge can sometimes cure the defect by offering a rehearing. The timing and terms of the rehearing matter and should be on legal advice.	Schedule 8; section 188 LRA

Where the procedural defect is serious — for example, the same person who investigated the misconduct then sat as chairperson — the CCMA more commonly finds both substantive and procedural unfairness and awards the full cap. The cost of getting the appointment wrong is therefore rarely worth the saving of appointing internally.

The SA National Framework

A South African disciplinary hearing is an internal employer process — not a court proceeding and not a CCMA arbitration — and the chairperson is appointed by the employer, not by the CCMA or the Labour Court. That distinction matters: a CCMA commissioner runs a con/arb under sections 133–138 of the LRA after a referral, and a Labour Court judge reviews an arbitrator’s award under section 158; neither role overlaps with the chairperson’s internal adjudication role.

The fairness standard itself — section 23 of the Constitution, section 188 of the LRA, and Schedule 8 — applies nationally, so the disqualification categories do not vary between Pretoria, Johannesburg, Cape Town or Durban. What does vary is the practical access to labour-law advice and the venue for any subsequent challenge.

Burger Huyser Attorneys’ Labour Law practice is staffed out of the firm’s Gauteng branches — head office in Linden, Randburg (011 888 0246) is the central intake point, with labour-law specialist Marius Ferreira available as a consultant and branch-level access at Sandton, Roodepoort, Pretoria (Menlyn), Centurion, Bedfordview, Alberton and Midrand. The Legal Practice Council (lpc.org.za), the CCMA (ccma.org.za) and the Department of Employment and Labour (labour.gov.za) remain the authoritative public-facing sources for the current text of the LRA, Schedule 8, and any practice directives that may apply to disciplinary processes.

Frequently Asked Questions

Can a direct line manager chair a disciplinary hearing for their own subordinate?

Generally no — the line manager is presumed to have a managerial stake in the outcome and to have formed a view on the subordinate’s conduct. The cleaner option is a manager from a different unit, an HR manager with no prior investigative involvement, or an independent external chairperson.

Can the same person who investigated the misconduct also chair the hearing?

No. The investigator’s role is to assemble the facts and recommend a charge; the chairperson’s role is to hear evidence afresh and adjudicate it. Combining the two collapses the prosecution and adjudication functions and renders the hearing procedurally unfair under Schedule 8.

Can the person who laid the original complaint also chair the hearing?

No. The complainant is a witness in the matter and cannot also act as the decision-maker; the role of a witness and the role of the presiding officer are incompatible.

Can an outside attorney or labour-relations specialist chair a disciplinary hearing?

Yes — engaging an independent external chairperson is the cleanest fit, particularly for serious misconduct, potential-dismissal matters, or any case where internal impartiality is in doubt. External chairpersons are paid a fee, but the cost is usually modest compared with the cost of a successful CCMA award.

How do I object to a chairperson I believe is biased?

Raise the objection on the record at the earliest possible point in the hearing; state the specific basis (prior involvement, personal interest, line-management relationship, etc.); ask that the objection be recorded in the minutes; and, if the presiding body rejects it, preserve the record — that record becomes central evidence at any later CCMA or Labour Court challenge.

Does a procedural defect from an ineligible chairperson always mean the dismissal is set aside?

Not always. A CCMA commissioner can find a dismissal substantively fair but procedurally unfair, in which case the employee may receive a capped compensation award — currently up to 12 months’ remuneration under section 193(1)(c) of the LRA. Where the dismissal is both substantively and procedurally unfair, the commissioner may award up to 24 months’ remuneration under section 193(1)(d). Where the procedural defect is serious — such as a chairperson with a clear prior involvement — the CCMA more commonly finds both substantive and procedural unfairness and awards the full cap.

Can an employee agree in advance to a chairperson who would otherwise be disqualified?

No — the disqualification is a matter of statutory fairness, not a contractual term that can be waived. An employee may agree to a particular independent chairperson, but cannot waive the right to have the matter heard by someone who meets the impartiality standard.

If you are weighing whether to object to a chairperson on grounds of bias or prior involvement, or you are an employer that has been asked to appoint a chairperson and want a second view on independence before the hearing, Burger Huyser Attorneys’ Labour Law practice can advise. The firm fields labour-law work through its Gauteng branches (head office in Linden, Randburg — 011 888 0246 — with intake at Sandton, Roodepoort, Pretoria (Menlyn), Centurion, Bedfordview, Alberton and Midrand), and labour-law specialist Marius Ferreira is available as a consultant. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and routinely advises on disciplinary hearings, CCMA referrals and Labour Court review work — get in touch to talk through the specific facts with someone who has run these hearings before.