Disciplinary Hearing | Chairperson Introduction and How the Process Works

In a South African disciplinary hearing, the chairperson opens by introducing the parties, recording the date and venue, confirming the charges on the record, and explaining the procedure before the employee is asked to plead. The hearing then proceeds through the leading of evidence (employer first, then employee), cross-examination, and closing arguments, after which the chairperson decides on guilt and, if guilty, an appropriate sanction. The process must meet the minimum standard of procedural fairness set by Schedule 8 (the Code of Good Practice: Dismissal) of the Labour Relations Act 66 of 1995, which incorporates the audi alteram partem right to be heard. This guide walks through what the chairperson actually says at the opening, how each subsequent stage runs, and what options are available after the verdict is delivered.

The Legal Framework: The LRA, Schedule 8, and the Audi Alteram Partem Rule

The Labour Relations Act 66 of 1995 (LRA) is the primary statute governing disciplinary action in the South African workplace, with Schedule 8 (the Code of Good Practice: Dismissal) setting the procedural minimum that employers and chairpersons must meet before any dismissal is lawful. The audi alteram partem principle — the right to be heard before any adverse decision — is the underlying common-law standard that Schedule 8 incorporates; chairpersons who decide guilt or sanction without giving the employee a fair opportunity to respond breach this standard.

Section 188 of the LRA defines when a dismissal is automatically unfair (for example, for participating in a protected strike, exercising a right under the Act, or unfair discrimination) — the test for substantive fairness differs from ordinary misconduct and carries higher compensation ceilings. Section 189 of the LRA governs dismissal for operational requirements (restructuring or retrenchment) — that is a separate consultative process and is not part of the misconduct hearing described below.

The Chairperson’s Role: Independence, Impartiality, and Pre-Hearing Preparation

The chairperson must be independent and impartial — preferably an external party (an HR professional, labour consultant, or attorney) or a senior manager with no prior involvement in the incident under investigation. A chairperson who recommended dismissal before the hearing, who conducted the investigation, or who is a direct witness to the misconduct cannot preside; they sit as both advocate and adjudicator, which breaches procedural fairness.

Pre-hearing duties include confirming the charge sheet is specific enough for the employee to answer, reviewing the investigation file, identifying the witnesses and documents that will be led, and confirming the venue and notice procedures have been followed. At the hearing, the chairperson controls procedure, rules on relevance, manages cross-examination, and decides both the verdict and the sanction. The chairperson is not the employer’s representative — they sit to adjudicate the dispute on the evidence, not to advocate for dismissal.

Burger Huyser Attorneys’ labour-law advisory work is led by specialist consultant Marius Ferreira, with admitted attorneys available across the firm’s Gauteng branches to assist employers needing to run a procedurally fair hearing and employees facing one.

The Chairperson’s Opening Introduction: What Gets Said First

The opening introduction is the chairperson’s first opportunity to set the tone and to create a record that will protect both parties later if the matter is taken to the CCMA. It typically follows a set sequence:

1. Welcome the parties on the record and ask each person present to introduce themselves and state their role (chairperson, employee, employer’s representative, employee’s representative, witnesses).
2. Record the date, time, and venue of the hearing, and confirm the hearing was properly convened.
3. Confirm the employee received the written notice of the hearing and the charge sheet, and confirm the employee understands the charge(s) being considered — this protects against a later argument that the employee was ambushed by a different case than the one notified.
4. Explain the procedure that will follow: the employee’s right to plead, to lead evidence, to cross-examine the employer’s witnesses, to be represented, and to be heard in mitigation if found guilty.
5. Confirm the employee’s chosen representative (if any) is present and acceptable to the hearing.
6. Address any preliminary objections before the plea is taken — for example, a postponement request, a translation or interpreter need, an objection to the composition of the hearing, or a charge-sheet challenge.
7. Confirm the employee is pleading to the correct charge and on the correct incident — this is the chairperson’s last check before substantive argument begins.

The Disciplinary Hearing Process, Step by Step

Once the opening introduction is complete, the hearing moves through a structured sequence:

1. Confirm the opening introduction has been completed and the charge is confirmed — the employee enters a plea (guilty or not guilty); if the employee does not plead, a not-guilty plea is recorded.
2. The employer presents its opening statement, then leads evidence-in-chief from each witness, with documents introduced and numbered as exhibits.
3. The employee (or representative) cross-examines each employer witness on the matters raised in evidence-in-chief.
4. The employer re-examines only on matters raised in cross-examination (not new matters).
5. The employer closes its case.
6. The employee presents their case in the same three-step format — opening statement, evidence-in-chief with witnesses, cross-examination by the employer, re-examination.
7. The employee closes their case.
8. Both parties make closing arguments — the employee gets the last word as a matter of fairness.
9. The chairperson deliberates privately, then returns to deliver the verdict on the record.
10. If the verdict is guilty, the chairperson hears mitigation from the employee and aggravating factors from the employer before deciding on a sanction.
11. The chairperson communicates the sanction and the employee’s right to appeal internally or to refer the dispute to the CCMA within 30 days.

Evidence and the Burden of Proof

The employer carries the burden of proving the misconduct on a balance of probabilities — it is not enough for the employer to raise a suspicion; the evidence must show that the misconduct is more likely than not to have occurred. Evidence must be relevant to the charge; the chairperson rules on relevance and may exclude hearsay, opinion evidence, or material not foreshadowed in the charge sheet.

Documentary evidence must be authenticated — usually by the witness who created or received the document and can confirm its contents. The chairperson must not rely on information that was not led in the hearing, even if personally aware of it from the investigation file — doing so breaches the right to be heard and is a recognisable ground for review.

Practical tip: Witnesses should give evidence one at a time and should not be present in the hearing room before testifying (the “exclusionary rule”) to prevent evidence-tampering between witnesses.

Possible Outcomes and Sanctions

Sanction	When Appropriate
Verbal or written warning	Minor first-offence misconduct
Final written warning	Repeated minor misconduct or first-offence misconduct of moderate seriousness
Demotion or transfer	Where the misconduct is tied to a specific role, relationship, or position of trust
Suspension without pay (limited duration)	Serious misconduct short of dismissal, where some disciplinary response is warranted
Dismissal	Serious misconduct (gross dishonesty, assault, gross negligence) or repeated misconduct after a valid warning has been issued

A sanction must be proportionate to the misconduct — a dismissal for minor misconduct is both substantively and procedurally unfair. The chairperson should weigh the employee’s disciplinary record, length of service, personal circumstances, and the consistency of sanctions imposed for similar misconduct in the same workplace.

After the Hearing: Internal Appeals, the CCMA, and the Labour Court

Most employers provide an internal appeal mechanism — typically to a more senior manager or a different external chairperson; the appeal should be a rehearing on the merits, not just a review of the original chairperson’s discretion. An employee has 30 days from the date of dismissal (or the date the outcome was communicated) to refer an unfair-dismissal dispute to the CCMA under section 191 of the LRA.

The CCMA arbitrates disputes about procedural and substantive unfairness and may award reinstatement, re-employment, or compensation — capped at 12 months’ remuneration for ordinary unfair dismissal and up to 24 months for automatically unfair dismissal under section 194. Either party can challenge a CCMA award in the Labour Court — review grounds are narrow (gross irregularity, exceeding powers, or procedural unfairness in the arbitration itself), and the Labour Court does not re-hear the underlying evidence.

Common Procedural Mistakes That Undermine the Hearing

• Failing to give the employee enough notice of the hearing or failing to specify the charges in writing — both are regularly raised as procedural defects at the CCMA.
• Appointing a chairperson who was involved in the incident, who conducted the investigation, or who recommended dismissal before the hearing began.
• Refusing to allow the employee representation — a union representative, a fellow employee, or an attorney — at a hearing that could end in dismissal.
• Leading new evidence at the hearing that was not foreshadowed in the charge sheet, surprising the employee with a different case than the one notified.
• Deciding the verdict before the hearing concludes, or pre-judging the sanction before mitigation has been heard.
• Skipping mitigation entirely where the verdict is guilty.

Each of these defects regularly succeeds at the CCMA as procedural unfairness — even where the substantive case for dismissal is strong.

Frequently Asked Questions

Who can chair a disciplinary hearing in South Africa?

Any independent and impartial person — typically an external chairperson (a senior HR professional, labour consultant, or attorney) or a senior manager with no prior involvement in the incident. The chairperson cannot be the person who conducted the investigation, who recommended dismissal beforehand, or who would otherwise sit as both witness and adjudicator; using such a person is a recognisable ground for procedural unfairness at the CCMA.

Does an employee have the right to be represented at a disciplinary hearing?

Yes — the LRA and Schedule 8 require that an employee be allowed representation by a fellow employee, a trade union representative, or an attorney. Refusing representation at a hearing that could result in dismissal is one of the most common procedural defects raised in CCMA arbitrations and frequently results in the dismissal being found unfair.

What happens if the employee does not attend the disciplinary hearing?

The hearing can proceed in the employee’s absence, provided the employee received proper notice of the date, time, and venue. The chairperson should record the absence, confirm service of the notice, and consider any reasonable postponement request. Proceeding without proper notice — or refusing a reasonable postponement — is itself a procedural flaw that can be challenged at the CCMA.

Can a chairperson impose dismissal without hearing mitigation?

No. Where the verdict is guilty, the chairperson must hear mitigation from the employee and aggravating factors from the employer before deciding on a sanction. Skipping mitigation or imposing dismissal without considering personal circumstances is a recognised procedural defect and a regular basis for a CCMA finding of unfair dismissal.

Is a disciplinary hearing the same as a CCMA arbitration?

No. A disciplinary hearing is the employer’s internal process; a CCMA arbitration is the external dispute-resolution forum the employee can refer the matter to if dissatisfied with the outcome. The CCMA reviews both procedural and substantive fairness — it does not re-hear the underlying evidence on a de novo basis, but it can find that procedural flaws were serious enough to make the dismissal unfair even where the substantive case was strong.

Can the chairperson rely on evidence that was not presented at the hearing?

No. The chairperson must base the verdict and sanction only on evidence actually led in the hearing. Taking into account information from the investigation file that was never put to a witness breaches the right to be heard and is regularly set aside on review at the Labour Court.

How long does an employee have to refer an unfair-dismissal dispute to the CCMA?

An employee has 30 days from the date of dismissal (or the date the outcome was communicated, depending on the circumstances) to refer an unfair-dismissal dispute to the CCMA under section 191 of the LRA. Late referrals are possible but require a condonation application showing good cause for the delay and reasonable prospects of success.

If you are facing a disciplinary hearing — as an employer who needs to run a procedurally fair process, or as an employee who needs representation or advice on the outcome — Burger Huyser Attorneys’ Labour Law practice can assist. The firm fields labour-law work through its Gauteng branches and is reachable on the head office line 011 888 0246. Specialist consultant Marius Ferreira leads the labour-law advisory work, with admitted attorneys available across Gauteng to assist at internal hearings, CCMA arbitrations, and Labour Court proceedings. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).