How to Conduct a Disciplinary Hearing as a Chairperson | Step-by-Step Guide

Chairing a disciplinary hearing in South Africa requires the chairperson to run a procedurally fair enquiry under the Labour Relations Act 66 of 1995 and Schedule 8 (Code of Good Practice: Dismissal), apply the audi alteram partem rule (notice of the allegations, an opportunity to respond, and a decision based on the evidence led), and produce a written outcome that records the charge, the evidence considered, and the sanction imposed. The substantive grounds for dismissal sit in section 188 of the LRA (conduct, capacity, or operational requirements) and the procedural fairness test in Schedule 8, both of which the chairperson must apply on review at the CCMA or Labour Court. Most chairperson errors are not findings on the facts — they are procedural: late notice, undisclosed evidence, denied cross-examination, or a sanction disproportionate to the misconduct proved.

The Legal Framework: What the Chairperson Is Actually Applying

The Labour Relations Act 66 of 1995 is the controlling statute for the employment relationship and any internal enquiry that may end in dismissal. Two provisions sit at the centre of the chairperson’s work.

Source	What it sets out
LRA section 188	Substantive grounds on which a dismissal may be fair — conduct, capacity, or the employer’s operational requirements. A dismissal for any other reason is unfair.
Schedule 8 (Code of Good Practice: Dismissal)	Procedural fairness requirements: investigate, notify, allow a hearing, allow representation, give an opportunity to respond, and communicate the decision with reasons.
LRA section 191	The employee’s right to refer an unfair-dismissal dispute to the CCMA, within 30 days of dismissal (or finalisation of any internal appeal).
LRA section 158(1)(g)	The Labour Court’s power to review a CCMA arbitration award on legal error — the standard against which the chairperson’s procedure is tested.

Audi alteram partem — the common-law right to be heard — is the foundational principle. Schedule 8 operationalises it as a three-part checklist: prior notice, reasonable time to prepare, and a hearing with the right to respond to the evidence. The chairperson applies this checklist to a process they are running themselves.

Who May (and May Not) Chair

There is no statutory requirement that the chairperson be an attorney. Any impartial person may chair — provided they are independent of the investigation and capable of running a fair procedure.

The following persons must not chair:

• The person who conducted the disciplinary investigation.
• The complainant in the matter.
• A person who will give evidence as a witness at the hearing.
• A line manager or HR representative who has already formed a view on guilt.

Document the appointment in writing before the hearing commences — the date, the scope, and the panellist’s confirmation of independence. Appointing the wrong person invalidates everything that follows.

Before the Hearing: Notice, Documents, and Preparation

The notice is the first piece of evidence on review. Serve a written notice at least 48 hours in advance — sooner for serious allegations. The notice must record:

• The date, time, and venue of the hearing.
• The allegations in ordinary language, particularised by date, place, and conduct.
• The right to representation (trade union representative, fellow employee, or accredited shop steward).
• The right to call witnesses and to cross-examine the employer’s witnesses.

Bundle the documentary evidence — witness statements, the investigation report, the rule or policy breached, prior warnings — and disclose it in advance. Non-disclosure is one of the most common procedural-fairness errors on review.

Confirm the venue, the recording method, and the panel composition. Only the chairperson decides; HR or management representatives present the employer’s case, not vote on the outcome. Brief the representative on the difference between leading evidence and arguing the case.

The Charge Sheet: Formulating the Allegations

Each allegation should be a discrete, factual charge — not a conclusion. Draft as “On or about [date] at [place] you [specific conduct]” rather than “You breached clause X of the policy.” Tie each allegation to the rule or policy alleged to have been breached.

Distinguish the misconduct categories — minor, serious, and gross — because proportionality turns on the category. Where dates or places cannot be fixed, particularise as best the evidence allows; vague charges prevent a meaningful defence.

At the Hearing: Running the Procedure

The hearing is a sequence of recorded stages. The chairperson drives each one.

1. Opening — introduce the chairperson, confirm identity, place the notice and bundle on record, confirm time to prepare, and confirm representation.
2. Recording the plea — read each allegation, record the plea (guilty, not guilty, or no plea), confirm on record.
3. On guilty pleas — the employer makes submissions on sanction; the employee makes submissions in mitigation; the chairperson weighs both.
4. On not-guilty pleas — the employer leads evidence witness by witness; each is led in chief, cross-examined by the employee, and may be re-examined.
5. Employee’s case — the employee leads evidence, calls witnesses, and produces documents.
6. Closing argument — both parties make closing submissions; the chairperson may ask clarifying questions during (not after) submissions close.
7. Adjournment to consider — the chairperson deliberates in private; an immediate “back-of-the-room” verdict is a procedural-fairness risk in any contested case.

Evaluating the Evidence: The Chairperson’s Reasoning

Apply the balance of probabilities — but the more serious the allegation, the more compelling the evidence must be. Where evidence conflicts, the chairperson must identify the basis for preferring one version: demeanour, inherent probability, corroboration, or prior inconsistent statements. Bare conclusions are not enough.

Hearsay is admissible but its weight depends on reliability, whether the source can be cross-examined, and whether the original source is available. Previous disciplinary records are not admissible during the merits phase — they shape the sanction, not the finding on misconduct.

The Outcome: Sanction, Reasoning, and Writing It Up

The chairperson may impose any sanction consistent with the employer’s disciplinary code and proportionality — warning, written warning, final warning, demotion, suspension without pay, or dismissal. Dismissal is reserved for misconduct serious enough to destroy the employment relationship; for first offenders and minor misconduct it is presumptively unfair unless circumstances justify it.

The written outcome must record:

• The charge, evidence considered, and findings of fact on each allegation.
• The application of the rule to those facts.
• The sanction imposed, with reasons for proportionality.

Where the employee is dismissed, the outcome letter must also record the right to refer the dispute to the CCMA within 30 days (the section 191 deadline) and the right to appeal through any internal appeal procedure. The CCMA’s process begins at ccma.org.za, where current rules, forms, and any active practice directives are published.

Common Chairperson Errors (and How to Avoid Them)

Five errors account for most unsuccessful outcomes on review. Each is curable in advance.

Error	What goes wrong	Cure
Unparticularised notice	The employee cannot prepare a defence to vague charges.	Clear, dated, factual allegations in the notice.
Denying cross-examination	The right to put questions to the employer’s witnesses is core to fairness.	Control the scope and tone — but do not extinguish the right.
Failing to record the proceedings	Without a record, the chairperson’s reasoning cannot be defended on review.	Take minutes or record the hearing.
Arguing the case for the employer	The chairperson is the presiding officer, not the prosecutor.	Pause, invite the employee to respond, refocus.
Sanction disproportionate to the misconduct	A dismissal sanction for a first offence of minor misconduct invites rescission on review.	The proportionality check is the single most common failure point — apply it explicitly.

For employers running several hearings a year, this is the discipline the firm’s Labour Law team is set up to support — external chairpersons, witness preparation, and post-hearing review to test the outcome against the LRA and Schedule 8 before it is challenged.

Checklist: Before, During, and After the Hearing

Frequently Asked Questions

Does the chairperson have to be a lawyer?

No. Any impartial person may chair — the requirement is independence from the investigation and the ability to apply a fair procedure. Employers commonly use HR professionals, uninvolved line managers, or external chairpersons from labour-relations consultancies. Where the matter is likely to be referred to the CCMA, an external chairperson with arbitration-grade experience is often appointed because the same procedural requirements apply on review.

How long does the disciplinary process take from notice to outcome?

The notice must give the employee a reasonable opportunity to prepare (commonly 48 hours at minimum). The hearing can run from under an hour to several days. The chairperson should deliver the written outcome within a reasonable time — delays of weeks without explanation are themselves a procedural-fairness risk.

Can an employee be represented by an attorney at a disciplinary hearing?

An attorney has no automatic right to appear at a private disciplinary hearing. The general position is that the employee is entitled to a trade union representative, a fellow employee, or an accredited shop steward. Some codes expressly allow legal representation; where the code is silent, the chairperson may exercise a discretion to permit a legal representative where the gravity of the allegations (typically a potential dismissal) makes it just. Document the basis for the decision.

What happens if the chairperson refuses to allow a witness?

The refusal must be procedurally fair and substantively reasonable. The employee (or employer) must put on record the identity of the proposed witness, the relevance of the evidence, and the prejudice of refusal. Refusing a witness whose evidence is relevant to a material issue may lead to the outcome being set aside at the CCMA or Labour Court.

Is the chairperson’s decision binding on the employer?

The chairperson’s outcome is the employer’s decision once ratified. The employer may apply its own internal appeal mechanism (if any) to overturn or vary the outcome, but the appeal decision-maker must be impartial and must not have been involved in the original hearing. The right to refer the dispute to the CCMA within 30 days of dismissal is independent of any internal appeal.

Can the chairperson resign mid-hearing and be replaced?

Yes, but the replacement must start the hearing afresh (or re-hear a record of what has already transpired) so the employee is not prejudiced. The safer course is to adjourn, document the resignation, appoint a new chairperson in writing, and continue.

Disciplinary hearings that may end in dismissal attract close scrutiny at the CCMA and the Labour Court. Procedural errors are the most common reason an otherwise defensible outcome is set aside. Burger Huyser Attorneys’ Labour Law team — led by specialist consultant Marius Ferreira — provides external chairpersons, witness preparation, and post-hearing review for employers across Gauteng, and represents both employers and employees in CCMA referrals and Labour Court reviews. Contact the head office on 011 888 0246 (after-hours 061 516 6878), 49 First Avenue, Linden, Randburg. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified) and is a member of the Johannesburg Attorneys Association and the Pretoria Attorneys Association.