Can the Investigation Manager Chair a Disciplinary?

No — under South African labour law, the person who investigates a misconduct allegation may not also chair the disciplinary hearing that decides it. Schedule 8 of the Labour Relations Act 66 of 1995 (the Code of Good Practice on Dismissal) and section 188 of the LRA require that the presiding officer at a disciplinary hearing be impartial and have no prior involvement in the matter; an investigation manager who has gathered evidence, interviewed witnesses, or formed a view on guilt cannot sit as the decision-maker. If the same person conducts both roles, the resulting dismissal is vulnerable to being found procedurally unfair at the CCMA, and the employer may be ordered to reinstate the employee or pay compensation capped under section 194 of the LRA.

The Short Answer: No, the Investigation Manager Should Not Chair

The presiding officer at a disciplinary hearing must be impartial and have no prior involvement in the case. An investigator has, by definition, prior involvement — they have assembled the evidence-pack, taken statements, and reached a provisional view on whether the allegation is sustainable. A reasonable observer would not conclude that the same person can switch hats from prosecutor to judge within the same hearing. The rule is therefore procedural, not merely a best-practice recommendation, and failing it can render a dismissal procedurally unfair at the CCMA.

The rule applies in both small-business and corporate contexts; the size of the employer does not relax it. The scale of the business affects how easily a separate presiding officer can be found, not whether the rule applies.

Where the Rule Comes From: LRA Schedule 8 and the Code of Good Practice

Schedule 8 of the Labour Relations Act 66 of 1995 sets out the Code of Good Practice on Dismissal, which is the controlling framework for procedural fairness in SA misconduct dismissals. Read together, the items require the employer to investigate the alleged misconduct with the employee given an opportunity to put their side of the story, and to convene a fair hearing before any decision to dismiss is taken. The decision-maker at the hearing must be a person other than the one who carried out the investigation — this is implicit in the framework’s requirement of impartial adjudication.

Section 188(1)(b) of the LRA reinforces the point: a dismissal is unfair if the employer fails to apply a fair procedure. Section 188(1)(a) also requires a valid reason (typically misconduct) and substantively fair grounds, but this article deals with the procedural limb.

The constitutional right to a fair hearing under section 34 of the Constitution of the Republic of South Africa, and the related common-law audi alteram partem principle (hear the other side before deciding), provide a parallel foundation. A disciplinary hearing is a quasi-judicial process affecting a person’s livelihood, and the decision-maker must demonstrably bring an open mind to it.

What “Impartiality” Means in Practice

The test for whether a presiding officer is sufficiently impartial is objective: would a reasonable observer conclude that the chair has an open mind? The chair’s own belief in their own fairness is not the controlling question.

Typically too involved to chair	Often still able to chair
Gathered the evidence personally	Received a written report only after the investigator finalised it
Interviewed the complainant or key witnesses	Has no prior knowledge of the witnesses
Directed or oversaw the investigation	Was briefed cold on the evidence-pack and the employee’s response
Reported the alleged misconduct to HR or management	Has had no involvement in the underlying events
Has previously disciplined the employee for related conduct	Is a different line manager in the same reporting structure with no overlap in the events in question

A manager who has merely received a written report from the investigator can typically chair, provided they read both the report and the employee’s response without having pre-committed to a particular outcome. The line is involvement, not mere awareness.

Who Can Chair Instead

For most South African employers, the practical alternatives are limited but workable:

• A different line manager with no involvement in the case — common in larger corporate HR environments.
• An HR manager who has not participated in the investigation — workable in mid-sized companies.
• An external chairperson — a labour-relations consultant or attorney briefed for that specific hearing. This is the standard safe option for small businesses and is increasingly used by corporate employers too, because external independence is the easiest defence to a procedural-fairness challenge.

External chairing is the typical solution for Gauteng SMEs in Randburg, Sandton, Centurion, and Midrand where no internal employee is suitably separate from the case. The cost is usually modest compared to the cost of defending an unfair-dismissal claim.

What to Do if the Same Person Has Already Done Both Roles

If the employer realises — either before or shortly after the hearing — that the same person investigated and chaired, the matter is not necessarily fatal. The hearing may still proceed, but the procedural-fairness risk is materially elevated and any resulting dismissal is vulnerable.

Recovery options, in order of safety:

1. Appoint a fresh presiding officer and re-hear the matter from the start. This resets the procedural-fairness position, because the new chair comes to the evidence with no prior involvement. Document the appointment in writing and confine the previous investigator’s role to presenting evidence at the re-hearing as a witness.
2. Proceed with the existing record and accept the risk — generally only acceptable where the misconduct is gross, undisputed, and the employee is unlikely to refer the matter to the CCMA. This is rarely a sound commercial call.
3. Re-label the investigator as a “witness presenter” — do not rely on this. The CCMA and Labour Court look at substance over form; if the same person drove the investigation and then decided the outcome, the defect is not cured by changing their title.

Consequences at the CCMA and Labour Court

A dismissal found procedurally unfair can be set aside, with reinstatement or compensation as the principal remedies:

Type of unfair dismissal	Compensation cap (section 194, LRA)
Ordinary procedural unfairness (no automatically unfair ground)	Equivalent of 12 months’ remuneration
Automatically unfair dismissal (e.g. tied to a protected disclosure, union activity, or another protected ground)	Equivalent of 24 months’ remuneration

The Labour Court may also review CCMA awards on procedural-fairness grounds where the presiding officer was demonstrably conflicted. In automatic unfair-dismissal cases, the procedural defect carries greater weight — the LRA tilts the scales against the employer where dismissal is triggered by a protected activity, even where the substantive ground would otherwise have justified dismissal.

Practical Steps for Employers Setting Up a Disciplinary Process

A disciplined process design at the outset is the most effective way to avoid a CCMA finding of procedural unfairness. The steps below cover the procedural architecture — once the substantive ground is established, the procedural steps are largely mechanical.

1. Appoint the investigator and the presiding officer as two distinct roles at the outset, in writing. The appointment letter should record who is in each role and confirm that the two roles will be held by different people.
2. Brief the presiding officer only after the investigator has finalised the report. This preserves the chair’s ability to weigh the employee’s response independently.
3. For SMEs without an internal HR function, brief an external labour-law consultant or attorney to chair. The cost is typically modest compared to the cost of a successful unfair-dismissal claim, and an external chair is the most defensible procedural architecture.
4. Record the separation of roles in the disciplinary file. It is the first document a CCMA commissioner will ask for if the dismissal is challenged.
5. Ensure the employee is given proper notice of the hearing, the allegations, and the right to be represented — the procedural framework cannot be compressed even where the misconduct appears open-and-shut.

Burger Huyser Attorneys routinely assists Gauteng employers with each of these steps — from drafting the role-separation memo at the outset, to chairing hearings externally, to defending a CCMA referral where the procedural architecture has been challenged. The firm’s Labour Law practice is led by specialist consultant Marius Ferreira and is supported by the broader litigation team.

Frequently Asked Questions

Can the investigation manager chair a disciplinary hearing in South Africa?

No. Schedule 8 of the Labour Relations Act and the Code of Good Practice on Dismissal require the presiding officer at a disciplinary hearing to be impartial and have no prior involvement in the matter. An investigator who has gathered evidence and interviewed witnesses cannot sit as the decision-maker without risking a finding of procedural unfairness at the CCMA.

What happens if the same person investigates and chairs the hearing?

The dismissal becomes vulnerable to being set aside as procedurally unfair. The CCMA may order reinstatement or compensation (capped at 12 months’ remuneration under section 194 of the LRA, or up to 24 months in automatic unfair-dismissal cases). The employer can mitigate by appointing a fresh presiding officer and re-running the hearing, but the underlying defect cannot be cured by re-labelling the investigator’s role.

Is it ever acceptable for the same person to do both roles?

Only in very limited circumstances — for example, where the employer is a sole proprietor and the misconduct is minor and undisputed. In any contested matter, the procedural defect is material and the dismissal is at risk. The safer course is always to appoint a separate presiding officer, even where the business is small.

Who is the right person to chair a disciplinary hearing in a small business?

An external chairperson — typically a labour-relations consultant or an attorney briefed for the hearing — is the standard safe option for small businesses that lack an internal HR function with suitable independence. The cost of external chairing is usually modest compared to the cost of defending an unfair-dismissal claim.

Does the rule change if the investigation manager did not personally interview any witnesses?

Not materially. The test is whether the presiding officer had any substantive involvement in the case, not whether they conducted witness interviews personally. If the investigation manager directed, oversaw, or reviewed the evidence-gathering process, they are typically too involved to chair.

Is this rule the same in every South African workplace?

Yes — the rule derives from Schedule 8 of the LRA and applies uniformly across all SA employers, regardless of size, sector, or province. There is no provincial variation on the separation-of-roles principle.

If you are an employer setting up a disciplinary process and need an external chairperson, or if you are an employee or employer facing a CCMA referral arising from a disciplinary hearing, Burger Huyser Attorneys’ Labour Law practice can assist. The firm is led by labour-law specialist consultant Marius Ferreira, supported by the general litigation team, and advises Gauteng employers and employees on disciplinary-process design, external chairing, CCMA representation, and Labour Court review. Initial enquiries: 011 888 0246 (head office, Linden, Randburg), with the Centurion branch on 012 644 4990 and the Sandton branch on 011 253 3080 for clients closer to those areas. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified — “Top Rated Law Firm in South Africa”) and fields this work across its Gauteng branches.