Chairing Disciplinary Hearings in South Africa | Rules and Process
Chairing Disciplinary Hearings in South Africa: A Procedural Guide for Chairpersons
Chairing a disciplinary hearing in South Africa requires a fair reason and fair procedure under section 188 of the Labour Relations Act 66 of 1995 (LRA) and the current Code of Good Practice: Dismissal. The employee must understand the allegations, have reasonable time to prepare, receive appropriate assistance, answer the case and receive a decision based on the evidence presented. The chairperson must also decide whether the sanction is substantively fair.
A practical hearing sequence is opening confirmations, allegations, the employer’s evidence, the employee’s version, questioning, closing submissions, private deliberation and a written outcome. It is not a criminal trial: the current Code allows the formality of an inquiry to reflect the circumstances. Procedural fairness and substantive fairness remain separate tests.
Important current-law update: the 2025 Code
Notice 3470 of 2025, published in Government Gazette 53294 on 4 September 2025 under section 203(2A) of the LRA, says the new Code of Good Practice: Dismissal took effect on publication and repealed the former Schedule 8 Code and the separate operational-requirements code. The Gazette places the new text under a Schedule 8 heading, so older guidance may use “Schedule 8 items”. This article refers to the current Code. It contains no universal 48-hour notice minimum: the employee must receive clear allegations and a reasonable preparation period, subject to the workplace code, collective agreement and circumstances.
The Legal Framework: Schedule 8 of the LRA and What Procedural Fairness Means
Section 185 protects the right not to be unfairly dismissed. Under section 188, an employer must prove a fair reason related to conduct, capacity or operational requirements and a fair procedure. Section 192 requires the employee first to establish the dismissal; the employer then bears the burden of proving fairness.
The current Code describes fair procedure as genuine dialogue and a reasonable opportunity to respond. This is the workplace form of audi alteram partem: the employee must know the case, answer it and have that answer genuinely considered. Substantive fairness asks whether a valid and known rule was breached, the seriousness and harm involved, consistency and whether the sanction is appropriate. Serious misconduct may justify dismissal where continued employment is intolerable, but each case is decided on its facts.
| Decision | Record | Risk if omitted |
|---|---|---|
| Procedure | Notice, assistance, opportunity to answer and rulings. | The dismissal may be procedurally unfair. |
| Guilt | Rule, evidence on each charge and reasons for accepting a version. | An allegation is treated as proof. |
| Sanction | Seriousness, record, service, consistency and alternatives. | Dismissal may be disproportionate. |
Most conduct and capacity disputes go to conciliation and, if unresolved, arbitration at the CCMA or a bargaining council. Sections 193 and 194 provide the remedy framework: reinstatement, re-employment or compensation, normally capped at 12 months’ remuneration for an ordinary unfair dismissal and 24 months for an automatically unfair dismissal. A Labour Court review under section 145 is not an ordinary appeal.
Who Can Chair a Disciplinary Hearing
The chairperson does not have to be an attorney. An informed and impartial HR practitioner, manager, owner or external labour specialist may chair, subject to the employer’s code and any collective agreement. The complainant, investigator or person who advised that dismissal was warranted should not ordinarily chair: combining roles creates a risk of apparent predetermination. An external chair is sensible for serious or contested matters, but is not universally mandatory.
The chairperson is the decision-maker, not management’s prosecutor. They may pre-read the investigation material to understand the issues, but must keep an open mind and decide only after the hearing. Burger Huyser Attorneys’ listed labour-law work includes disciplinary hearings and CCMA disputes, with Marius Ferreira identified as its specialist labour-law consultant.
Pre-Hearing Preparation
Before the hearing, the chairperson should complete this checklist:
- Read the governing documents: disciplinary code, contract, collective agreement, allegations and investigation material.
- Check independence: disclose and address any prior role, relationship or interest that could affect impartiality.
- Confirm the investigation: ensure the charge has a proportionate factual basis and exclude undisclosed material from the decision.
- Check notice: identify the allegations, date, venue and possible consequences in enough detail, and allow reasonable preparation time. A 48-hour period applies only if the workplace rules require it; it is not a universal statutory minimum.
- Protect assistance: apply the Code’s right to a fellow employee or trade union representative; an external lawyer is not an automatic internal-hearing entitlement.
- Make access possible: use a private venue, provide relevant documents and arrange reasonable language assistance where possible.
- Plan the record: prepare the agenda, attendance list, bundle, witness order and method for recording objections and rulings.
Pre-reading is not pre-judging. If new material appears, disclose it and allow a response or do not rely on it.
The Hearing Itself: Step-by-Step
Explain the process and adapt it only for a defensible reason:
- Opening: record attendees, roles, language, representation, notice and preliminary objections.
- Allegations: explain each charge plainly and record the employee’s response; do not decide a materially different charge.
- Employer’s case: hear relevant documents and witnesses. Workplace evidence need not follow every criminal-trial rule, but must be fairly tested.
- Questioning: allow the employee or representative a meaningful opportunity to challenge evidence; control only irrelevant or repetitive questioning.
- Clarification: permit a response to genuinely new matters without introducing a new, undisclosed case.
- Employee’s case: allow the employee to give a version, present documents and call relevant witnesses.
- Closing submissions: allow both sides to address the evidence, charges and possible sanction.
- Deliberation: decide privately, charge by charge, using only material properly presented and addressing material version disputes.
- Outcome: announce the finding and sanction where practicable, then provide written reasons and the applicable appeal route.
If the employee is absent, first consider whether notice was adequate, the absence justified and a postponement necessary. Proceeding without that check can make the outcome unfair.
Reaching and Recording the Sanction
The disciplinary code is the starting point, not a mechanical answer. Apply the current Code and ask whether the rule was valid, reasonable and known; assess the misconduct’s seriousness and harm, progressive discipline, acknowledgement, service, record and consistency. Dismissal is generally appropriate only where continued employment is intolerable, although one serious act can meet that test.
| Factor | Question |
|---|---|
| Rule | Was the rule valid, reasonable and known? |
| Conduct | What seriousness, harm and effect on trust are proved? |
| Correction | Could a warning or other measure prevent repetition? |
| Employee | What do service, record, acknowledgement and circumstances show? |
| Consistency | Has the employer treated comparable misconduct consistently? |
The written outcome should state the finding on each charge, evidence relied on, the employee’s version and why it was accepted or rejected, the sanction, effective date and reasons. The current Code expects disciplinary records to specify the transgression, action and reasons. There is no universal statutory five-working-day deadline, although a code may set one; delay does not reset the employee’s section 191 referral clock.
Common Pitfalls and How to Avoid Them
| Pitfall | Risk | Fix |
|---|---|---|
| Investigator or complainant chairs | Predetermination appears. | Appoint an independent chairperson. |
| No appropriate investigation | The charge rests on assumption. | Investigate proportionately first. |
| Insufficient notice or detail | The employee cannot prepare. | Give clear allegations and reasonable time. |
| Assistance refused | The right to be heard is weakened. | Apply the code and permit meaningful assistance. |
| Undisclosed hearsay | The evidence cannot be challenged. | Disclose and test it, or exclude it. |
| Versions or reasons ignored | The decision cannot be reviewed. | Address each material dispute in writing. |
| Disproportionate or inconsistent sanction | Substantive unfairness follows. | Assess alternatives and consistency independently. |
A clear record shows that the employee was heard and that the decision was reasoned. Burger Huyser Attorneys’ labour-law team can assess that record when advising on an outcome or CCMA dispute.
After the Hearing: Review Rights and Consequences
Check the employer’s appeal procedure immediately; its period and whether a different decision-maker is required vary by code. The original chairperson should not decide their own appeal.
Under section 191(1)(b)(i), an employee generally has 30 days from dismissal, or from the later final decision to dismiss or uphold dismissal, to refer an unfair-dismissal dispute to the appropriate bargaining council or CCMA. A late referral requires condonation. An internal appeal should not be assumed to stop the statutory clock.
Conciliation normally precedes arbitration. The CCMA arbitrator assesses fairness independently: the chairperson’s outcome is important evidence, not a binding answer. If unfairness is found, relief may be reinstatement, re-employment or compensation. A CCMA award may be reviewed by the Labour Court under section 145 on recognised legal grounds; review is not a second appeal simply because another result seems preferable.
Final check: Before signing, confirm that the employee knew the case, had a real opportunity to answer, that each finding is tied to evidence, and that the sanction is justified by the current Code and the specific facts.
Local Resource: Disciplinary-Hearing Guidance Across South Africa and Gauteng
Disciplinary Hearings in South Africa: The Current Code, the CCMA and Practical Guidance
The framework is national, but the appropriate bargaining council or CCMA route depends on the workplace, sector and reason for dismissal. An internal chairperson is not a CCMA commissioner, and an ordinary local court is not a substitute for the labour-law process. Check the code, collective agreement and referral deadline before choosing a forum.
Burger Huyser Attorneys practises labour law from its Linden, Randburg head office and branches across Gauteng. Its listed work includes disciplinary hearings, employment contracts, CCMA disputes and Labour Court matters, with Marius Ferreira as specialist labour-law consultant and general litigation support for related disputes. Contact details appear in the CTA below.
Frequently Asked Questions
Does the chairperson of a disciplinary hearing need to be a lawyer?
No. South African law does not require an attorney to chair an internal disciplinary hearing. The chairperson must be informed, impartial and able to apply the employer’s code and the current Code of Good Practice: Dismissal fairly. An external labour specialist may be sensible for a serious or contested matter, but the applicable code or collective agreement should be checked first.
Can the same person who investigated the misconduct also chair the hearing?
There is no blanket rule automatically invalidating every hearing chaired by an investigator, but combining the roles creates a serious risk of apparent prejudgment and procedural unfairness. The investigator gathers facts and the chairperson decides afresh. Employers should ordinarily appoint different people, especially where dismissal is possible, and address any conflict before the hearing.
How long does the chairperson have to deliver the written outcome?
The Labour Relations Act sets no universal deadline for an internal chairperson’s written outcome. The employer’s code or collective agreement may prescribe one, and a prompt outcome is best practice. The current Code expects records to identify the transgression, action and reasons. The 30-day CCMA referral period runs from the relevant dismissal date, so delay can prejudice the employee.
What happens if the chairperson makes a procedural mistake?
The outcome may be procedurally unfair even if misconduct was proved. The employee should ask that the defect be recorded, use any internal appeal promptly and obtain advice about a CCMA referral or other forum. Relief may include compensation, reinstatement, re-employment or, in suitable circumstances, a fresh hearing before a different chairperson; the remedy depends on the defect, prejudice, merits and statute.
Is the chairperson’s decision binding on the employer?
The written outcome is ordinarily the employer’s internal decision, subject to an appeal, review, delegated-authority rule and the Labour Relations Act. It does not bind the CCMA or Labour Court, which assess fairness independently. An employer should not vary it without following the applicable appeal or disciplinary process.
Speak to a Labour-Law Attorney
If you are preparing to chair a disciplinary hearing, responding to an appeal or facing a CCMA referral, Burger Huyser Attorneys can review the code, notice, evidence and outcome. Labour law is supported by specialist consultant Marius Ferreira and the general litigation practice. The Linden, Randburg head office is at 49 First Avenue, Linden, Randburg, 2194; contact 011 888 0246 or, after hours, 061 516 6878. Office hours are Monday to Friday, 7:30am to 4:30pm. Burger Huyser Attorneys has a 4.8/5 average from 250+ Google reviews (Trustindex verified) and was recognised as Best Multi-Sector Law Firm 2023 – Johannesburg by Acquisition International.
General Information Disclaimer: This article is general information about chairing disciplinary hearings in South Africa, not legal advice for a specific employee, employer or process. The procedure depends on the facts, current Code, disciplinary code, collective agreement and sector or bargaining council. Confirm current statutory requirements with the Department of Employment and Labour and referral requirements and deadlines with the CCMA or relevant bargaining council before relying on any timeframe. A qualified labour-law practitioner should review a contested or potentially dismissible matter promptly.
NEED TOP LEGAL SUPPORT IN SOUTH AFRICA? CONTACT OUR LAWYERS TODAY.
Contact our team of experienced law attorneys at Burger Huyser Attorneys to assist you in all matters and procedures.
CONTACT DETAILS
