Under What Circumstances Must a Chairperson Recuse Himself or Herself from a Disciplinary Hearing?

A chairperson must recuse himself or herself from a disciplinary hearing whenever a reasonable, informed observer would conclude that his or her impartiality might reasonably be questioned — the test is objective, not the chairperson’s own view of his or her fairness. The grounds in practice include prior personal or professional involvement with the complaint, a close relationship with the complainant or the employee, having witnessed or investigated the alleged misconduct, having previously expressed a concluded view on guilt, being the complainant or line manager in the matter, having a direct financial or disciplinary interest in the outcome, and pre-hearing public or social-media commentary on the employee’s guilt. Recusal is required under the Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995) read with the LRA’s overarching fairness requirement in section 188, and a failure to recuse where grounds exist is one of the most common procedural defects raised on review or appeal to the CCMA or the Labour Court.

The Legal Framework: Why Recusal Is Required at All

Section 188 of the Labour Relations Act 66 of 1995 (“the LRA”) sets the floor for every dismissal in South Africa: an employer must show that the dismissal was both substantively fair (a valid reason linked to misconduct, incapacity, or operational requirements) and procedurally fair (followed a fair procedure). Procedural fairness is not a soft target — it is a freestanding requirement, and a dismissal can be set aside even where the substantive reason was sound.

Schedule 8 to the LRA, the Code of Good Practice: Dismissal, fleshes out the procedural minimum. It does not name “impartiality” in a single bullet, but the audi alteram partem principle (the right to be heard) is read into the schedule’s requirement that an employee be given a fair opportunity to respond before any sanction is imposed. A biased adjudicator denies that opportunity in substance, even where the letter of the schedule is observed.

The CCMA and the Labour Court treat a biased chairperson as a procedural defect capable of vitiating the outcome, irrespective of whether the substantive decision was correct. Recusal doctrine in disciplinary hearings is therefore not a courtesy or a matter of workplace etiquette — it is a substantive legal requirement with consequences if it is ignored.

The Objective Test: How “Impartiality Might Reasonably Be Questioned” Is Assessed

The South African recusal test, applied consistently by arbitrators and the Labour Court, asks whether a reasonable, informed observer, viewing the matter realistically and practically and with knowledge of the relevant circumstances, would conclude that the chairperson’s impartiality might be impaired. The leading articulation traces through the line of cases running from Khailey (later reported as Kgalelo) and was most recently re-stated in decisions such as Ladders and Conveyors (Pty) Ltd v Lambert & others [2024] ZALAC 89.

Three features of the test matter in practice:

• It is objective, not subjective. It is not enough for the chairperson to subjectively believe he or she is fair. The inquiry is what the situation looks like to a reasonable outsider with access to the relevant facts.
• It is administered in two stages. The chairperson self-assesses the ground at the hearing (deciding whether to step aside), and the same standard is revisited on review or arbitration if the employee later challenges the finding.
• It is concerned with apparent bias, not actual bias. The test does not require proof that the chairperson was in fact biased. It is enough that the circumstances reasonably support a conclusion that bias might exist.

Specific Grounds That Require Recusal

The grounds below are not exhaustive, but they capture the situations that recur in CCMA awards and Labour Court review judgments.

Prior involvement in the matter

A chairperson who investigated the incident, drafted the charge sheet, issued a prior warning in the same disciplinary chain, or recommended discipline will ordinarily be required to recuse. The role of prosecutor and adjudicator cannot sensibly be combined.

Having witnessed the alleged misconduct

A chairperson who saw or heard the events in question cannot then sit as adjudicator; the role of witness and adjudicator is incompatible. This is true even where the chairperson was not the direct victim of the conduct.

Being the complainant, line manager, or direct victim

Combining the role of accuser (or victim) with that of adjudicator is one of the clearest grounds for recusal and almost always results in the dismissal being set aside on procedural review.

Close personal relationship with the complainant, manager, or employee

Family ties, romantic relationships, longstanding personal friendships, or active personal disputes that affect the workplace will ordinarily trigger recusal. The closer the connection, the less the chairperson needs to do before stepping aside.

Prior concluded views on guilt

Having expressed a final opinion (in writing, in management discussion, or in a formal recommendation) that the employee is guilty will normally require recusal, even if the chairperson later believes they can be fair. The earlier expression of a concluded view cannot be undone by a later profession of open-mindedness.

Direct financial or career interest in the outcome

Where the chairperson’s own bonus, performance review, or position is tied to the disciplinary outcome — for example, where the alleged misconduct is the employee’s refusal to cover for the chairperson’s own conduct — the conflict is direct and recusal is required.

Pre-hearing public or social-media commentary

Posting about, or being quoted in social-media commentary on, the employee’s alleged guilt before the hearing puts the chairperson’s impartiality in issue. A reasonable observer will treat such commentary as evidence of a concluded view.

Acting under instruction to find guilt

Where the chairperson has been told, formally or informally, that a guilty finding is expected, the role converts from adjudication into ratification. This is a structural rather than personal defect, and it requires recusal.

Pattern of recusal in comparable matters

This is not a ground for recusal in itself, but a disciplinary history of inconsistency in who recuses (or who is asked to recuse) can itself be challenged as evidence of selective enforcement on review.

Recusal-Raising Situations vs. Situations That Usually Don’t

Situation	Recusal usually required?
Chairperson drafted the charge sheet	Yes — drafted the case, not neutral
Chairperson saw the incident	Yes — witness and adjudicator combined
Chairperson manages the employee directly	Yes — accuser and adjudicator combined
Chairperson previously disciplined the employee for unrelated misconduct	No (standing alone) — but review whether the prior matter creates an animus
Chairperson knows the employee socially, but distantly	Not ordinarily — depends on closeness and context
Chairperson is employed by the same company	No (standing alone) — internal independence, not external, is the requirement
Chairperson has expressed concern about the conduct informally before the hearing	Often yes — if the expression was a concluded view; not if it was a neutral reporting line

What Happens If a Chairperson Fails to Recuse Where Grounds Exist

The procedural consequences flow in three steps:

1. Raising the objection at the hearing. The employee (or representative) should raise the bias objection at the outset of the hearing. A properly conducted chairperson will hear the objection, briefly consider it against the objective test, and rule on the record.
2. Refusal to recuse leads to a record. If the chairperson refuses to recuse and a finding of guilt is made, the objection must be on the record (transcript or notes). The refusal itself does not determine the outcome — the procedural defect is the failure to step aside, not the refusal alone.
3. Review and remedy. The employee can refer the dispute to the CCMA within 30 days of the dismissal (under section 191 of the LRA) or seek review in the Labour Court. The CCMA arbitrator or Labour Court judge may find the dismissal substantively fair but procedurally unfair, and order reinstatement or compensation under section 194. Compensation is typically calculated at between one and twelve months’ remuneration, depending on the seriousness of the procedural defect and the employee’s circumstances.

The remedy is rarely the disciplinary outcome being reopened on the merits. The dismissal is set aside for the procedural flaw; the underlying allegation, if not yet determined, would ordinarily need to be re-heard before a properly impartial chairperson.

Procedural Mechanics: How Recusal Should Be Raised and Recorded

Recusal objections should be handled with the same formality as any other procedural step at the hearing:

• Raise the objection at the earliest opportunity, normally at the start of the hearing once the chairperson has introduced himself or herself.
• Frame the objection by reference to the specific ground (relationship, prior involvement, witness role) rather than a bare “I think you are biased.” A stated ground is far easier to defend on review than a generalised allegation.
• The chairperson should rule on the record — either stepping aside with a short statement of the ground, or ruling that the ground does not require recusal and giving reasons.
• If the chairperson refuses to recuse and the employee later wishes to challenge, the objection and the ruling must both be on the record so the challenge can be raised on review or in arbitration referral.
• After recusal, a replacement chairperson is appointed and the hearing is restarted, not continued — the new adjudicator must hear the evidence afresh.

What a Chairperson Should Do If Unsure

The conservative posture is to recuse. The cost of an unnecessary recusal is a short delay while a replacement is appointed. The cost of a procedurally unfair dismissal finding — reinstatement or several months’ compensation — is far heavier, and is paid regardless of how fair the chairperson later believes the hearing was.

Where the ground is borderline (a working relationship, a prior unrelated disciplinary), recusal is still usually the safer course unless the employee specifically consents, on the record, to the chairperson continuing. The consent should be recorded in writing, with the employee informed of the ground before consenting.

Either way, document the basis for the decision. A short written note on the file (stating the ground considered, the test applied, and the conclusion) makes the position defensible if challenged later. A chairperson who has considered a recusal ground and decided against it, with reasons, is in a much stronger position on review than one who has not addressed the ground at all.

If you are an employer needing an external chairperson for an internal disciplinary hearing, or an employee who has been dismissed after a hearing where a recusal ground existed and was not addressed, contact Burger Huyser Attorneys on 011 888 0246 (Randburg head office) or 012 644 4990 (Centurion). The firm’s Labour Law practice handles chairperson appointments, CCMA referrals within the 30-day time-bar under the LRA, and Labour Court review proceedings in the Gauteng Division. Bring the charge sheet, the hearing record (transcript or notes), the chairperson’s ruling on any objection, and the dismissal letter to the first consultation so the procedural defect can be assessed against the recusal test.

Frequently Asked Questions

Does the chairperson have to recuse himself just because the employee asks?

No. A bare request for recusal, without a stated ground, does not require recusal. The chairperson should hear the ground, consider it against the objective test (would a reasonable observer conclude impartiality might be impaired?), and rule on the record with reasons.

Can a chairperson who previously disciplined the same employee sit on a new charge?

Usually no, if the prior disciplinary was substantively connected to the current matter (for example, the current charge is a refusal to comply with a prior warning). If the prior disciplinary was for an unrelated earlier incident, recusal is not automatic but should be considered carefully — the safer course is to step aside.

Can the chairperson be the employee’s direct line manager?

Generally no. Line management of the complainant employee combines the roles of accuser and adjudicator and will almost always require recusal. The employer should appoint a different adjudicator; if the organisation is too small to have an internal alternative, an external chairperson (often a labour consultant or attorney) should be appointed.

Does recusal apply to an internal HR representative who drafted the charge sheet?

Yes. Drafting the charge sheet places that person on the prosecution side of the process. A different person must chair.

What happens if the chairperson refuses to recuse and the employee is dismissed?

The employee can refer the dispute to the CCMA within 30 days of the dismissal (or 30 days from the date of the review outcome if internal review was exhausted). The CCMA arbitrator can find the dismissal substantively fair but procedurally unfair for the bias defect, and order reinstatement or compensation of up to 12 months’ remuneration under section 194 of the LRA.

Is the test for recusal the same in the CCMA as in an internal hearing?

The principle (objective reasonable-observer test) is the same. The CCMA applies it to its own presiding arbitrators and commissioners. Where an internal chairperson is alleged to have been biased, the CCMA reviews the conduct against the same standard on referral.