What Does a Disciplinary Hearing Chairperson Do?

A disciplinary hearing chairperson in South Africa is an impartial presiding officer who runs the enquiry, weighs evidence on a balance of probabilities, decides whether misconduct is proved, and issues a reasoned outcome on both the finding and the appropriate sanction. The role is grounded in section 188 of the Labour Relations Act 66 of 1995, read with Schedule 8 (the Code of Good Practice: Dismissal), which set the procedural and substantive fairness standards any disciplinary hearing must meet. The chairperson may be an internal manager, an external chairperson, or a CCMA- or SAAPI-accredited presiding officer, but in every case must act independently of both the employer and the employee. Their written decision — findings of fact, application of the rule to those facts, and the sanction imposed — is the record that any later CCMA conciliation-arbitration or Labour Court review will examine.

The Chairperson’s Role at a Glance

The chairperson is the impartial decision-maker of the enquiry. They are not the employer’s representative, and they are not the employee’s advocate. Three core duties define the role:

1. Run a procedurally fair process.
2. Decide on the evidence whether misconduct is proved.
3. Determine an appropriate sanction if it is.

The chairperson is the single source of the written, reasoned outcome. Neither the complainant nor the manager imposing discipline can substitute their own decision. A critical distinction follows from this: the chairperson is not the prosecutor. Their job is to test the evidence put by the employer, not to build the employer’s case for them.

The Legal Framework That Defines the Role

Several layers of authority govern what the chairperson does and how they must do it:

Source	What it sets out
Labour Relations Act 66 of 1995 (LRA), section 188	Requires that any dismissal be both substantively and procedurally fair; the chairperson’s enquiry is the procedural-fairness mechanism in practice.
Schedule 8 to the LRA — Code of Good Practice: Dismissal	Sets the standard steps the chairperson must facilitate (notice of the allegation, time to prepare, right to be heard, right to representation, right to appeal). Item 7 in particular governs the standard of proof and reasoning required for the outcome.
LRA section 189 and section 187	Apply where dismissals follow operational requirements (“no-fault”) or are alleged to be automatically unfair; the same procedural standards apply, but the substantive test differs.
Common-law principles (audi alteram partem and nemo iudex in causa sua)	Sit alongside the LRA and Schedule 8 as the constitutional-fairness baseline — the right to be heard and the rule against being judge in one’s own cause.

Who Can Chair a Disciplinary Hearing

Any impartial person with the competence to run a fair enquiry may chair. There is no statutory requirement that the chairperson be a lawyer. In practice, three categories of chairperson are briefed:

• Internal chairpersons — typically an HR manager or senior manager unrelated to the line of command over the employee; widely used for routine misconduct.
• External chairpersons — independent attorneys or labour-relations specialists briefed for the matter; common where the allegation is serious (gross misconduct), where the matter is likely to escalate to the CCMA, or where internal impartiality is in doubt.
• Accredited presiding officers — commissioners trained through the CCMA’s training programme, accredited by SAAPI (South African Association of Presiding Officers) or equivalent bodies; their accreditation strengthens the procedural record against later challenge.

Certain roles are ineligible by design: the direct line manager who investigated or initiated the charge, the complainant in the matter, a witness in the matter, and any person with a material personal interest in the outcome. Briefing an external chairperson rather than a conflicted insider is a routine way to protect the record before any of these conflicts become an issue.

Duties Before the Hearing

Most procedural-fairness challenges succeed on what happened before a single witness is called. The chairperson’s pre-hearing duties include:

• Confirming the written charge sheet identifies the alleged misconduct with sufficient particularity — the rule alleged, the date, the place, and the conduct complained of.
• Confirming the employee received the charge sheet and notice of the hearing with adequate time to prepare. What counts as adequate turns on the gravity of the allegation and any prior warnings.
• Checking that the employee knows they may be represented — by a fellow employee, a trade union official, or, where the disciplinary code permits or a mutual agreement is reached, a lawyer.
• Reviewing the documentary record — witness statements, prior warnings, the disciplinary code, and any policies being relied on — so the hearing runs on a known evidentiary base.
• Identifying any conflict-of-interest or prior-involvement issue that should disqualify them, and recusing where one arises.

Duties During the Hearing

Once the hearing opens, the chairperson’s task is to facilitate a fair exchange of evidence while keeping control of process. In practice this means:

• Opening the hearing, confirming the charge, recording attendances (employee, representative, witnesses, employer representative), and placing the disciplinary code on record.
• Applying the audi alteram partem principle at every stage — both sides lead evidence, cross-examine, and address argument.
• Deciding on evidentiary objections (relevance, hearsay weight, repetition) and, where evidence is admitted, noting the weight rather than refusing it on technicalities.
• Managing the timetable — sequence of witnesses, time limits, breaks — without cutting off either side’s right to put their case.
• Questioning witnesses where clarity is needed, but staying neutral in tone and substance; questions should illuminate, not argue the case.
• Ensuring the employee understands each step and has a fair opportunity to respond to every piece of evidence relied on.

How the Chairperson Decides: Evidence and Standard of Proof

The applicable standard is the balance of probabilities — is it more likely than not that the misconduct occurred on the evidence led. The employer carries the onus of proving the misconduct; the employee does not need to prove innocence. Evidence may include documents, witness testimony, CCTV stills, electronic records, and prior warnings. The chairperson weighs credibility and reliability, not merely volume. Inconsistencies in the employer’s case that go to a material fact typically resolve doubt in the employee’s favour on that fact.

Duties After the Hearing: The Reasoned Outcome

The chairperson must issue a written outcome that contains five components in some form:

1. The charge.
2. The evidence led.
3. Findings of fact.
4. The application of the rule or policy to those facts.
5. The sanction (or acquittal).

Where dismissal is the sanction, the outcome must show that proportionality was considered — whether a lesser sanction (warning, final warning, suspension without pay, demotion) would have been appropriate in the circumstances. The outcome must be delivered within a reasonable time and in writing. A brief in-hearing ruling on guilt followed by a separate sanction ruling is acceptable provided both are recorded. The outcome is the foundation document for any later CCMA or Labour Court review, which is why vague or unparticularised reasons are a common ground on which procedural fairness is challenged.

Common Mistakes Chairpersons Make

Even experienced chairpersons fall into the same handful of traps:

• Failing to recuse where there is a real or perceived conflict of interest — particularly where the chairperson is also the line manager or was involved in the investigation.
• Cutting off cross-examination on a point the chairperson considers “irrelevant” without hearing argument on relevance.
• Issuing a conclusion that says “the employee is guilty” without walking through which evidence was accepted and which was rejected, and why.
• Defaulting to the employer’s disciplinary code’s recommended sanction without independently weighing proportionality.
• Recording the outcome as “dismissal approved” rather than as the chairperson’s own reasoned decision — this signals rubber-stamping, which is a frequent ground of successful CCMA challenges.
• Failing to confirm the employee’s right of appeal in the outcome document.

After the Outcome: Review and Appeal

An unfavourable outcome is not the end of the road. Employees typically have three avenues:

Avenue	Scope and timing
Internal appeal	Most disciplinary codes allow the employee to appeal internally within a fixed period (commonly 5–10 working days); the appeal chairperson must be independent of the original chairperson.
CCMA	An internal process that ends in dismissal (or, in some cases, unfair treatment short of dismissal) can be referred to the CCMA within 30 days of the outcome; the commissioner reviews the fairness of the process and substantive decision.
Labour Court	CCMA arbitration awards can be reviewed on grounds of legal error; the chairperson’s written record is the central evidence the court reads.
Bargaining council forums	In sectors covered by a bargaining council, the forum’s dispute procedures may replace or supplement the CCMA route.

Choosing and Working With a Chairperson

Choice of chairperson shapes the procedural record more than any other single decision. Three working principles apply:

• An internal chairperson is faster and lower cost, and is appropriate for routine misconduct where impartiality is not in doubt.
• An external chairperson produces a stronger procedural record and carries lower risk on review, and is advisable for gross-misconduct allegations, dismissals of senior or long-service employees, or any matter likely to be referred to the CCMA.
• Briefing the chairperson properly — charge sheet, code, prior warnings, witness statements — is what determines whether the record can be defended later. The chairperson’s output is only as strong as their input.

Burger Huyser Attorneys fields these briefings across Gauteng through its Labour Law team, led by specialist consultant Marius Ferreira. Where the matter needs an external chairperson or where the procedural record has to hold up against a later CCMA challenge, that bench of experience is what the firm briefs into the enquiry.

Internal Enquiry vs CCMA vs Labour Court

A disciplinary hearing is an internal process — it is not the CCMA and it is not a court, even though the same procedural-fairness standards apply. The CCMA enters the picture only after the internal process ends: an employee who is dismissed (or, in some circumstances, treated unfairly short of dismissal) refers the dispute to the CCMA for conciliation and, if unresolved, arbitration. The Labour Court sits a step further back, reviewing CCMA arbitration awards on legal error rather than re-running the disciplinary hearing on the merits. South African employers and employees frequently conflate the three, with the practical consequence that an internal chairperson’s record is treated casually when it is in fact the document the CCMA commissioner — and, if necessary, the Labour Court judge — will read first.

Frequently Asked Questions

Does the disciplinary hearing chairperson have to be a lawyer?

No — South African law does not require the chairperson to be a legal practitioner. Any impartial, competent person may chair. Lawyers or accredited presiding officers are usually briefed only where the matter is serious, the alleged misconduct is complex, or the outcome is likely to be tested at the CCMA or Labour Court.

Can the employee’s direct manager chair the disciplinary hearing?

As a general rule no — the chairperson must be impartial, and a manager who is also the complainant, the investigator, or a material witness has a disqualifying conflict of interest. Where impartiality is in doubt, the employer should brief an independent external chairperson to preserve the procedural record.

What standard of proof does the chairperson apply when deciding on guilt?

The balance of probabilities — is it more likely than not, on the evidence led, that the misconduct occurred. The employer carries the onus of proving the charge. The chairperson weighs credibility and reliability of evidence and records which evidence is accepted, which is rejected, and why.

Can the chairperson question witnesses during the hearing?

Yes — the chairperson may ask clarifying questions of any witness where it helps the evidence. The questions must remain neutral; the chairperson does not act as prosecutor. Cross-examination is normally conducted by the employee (or their representative) and the employer representative, with the chairperson ruling on objections and relevance where needed.

What happens if the employee objects to the chairperson?

The employee should raise the objection at the start of the hearing, stating the basis (prior involvement, conflict of interest, bias). The chairperson should consider the objection on the record and either recuse themselves or give reasons for proceeding. An unresolved objection is itself a procedural-fairness ground the employee can raise at the CCMA later.

How binding is the chairperson’s decision?

The chairperson’s decision is binding internally — the employee cannot simply ignore a finding of misconduct. It is not, however, final: the employee can appeal internally, refer an unfair-dismissal dispute to the CCMA within 30 days, and ultimately apply to the Labour Court to review an arbitration award. The strength of the chairperson’s written record is what determines how well the decision survives review.

If you are an employer needing an impartial external chairperson for an upcoming disciplinary enquiry, or an employee who has been charged and wants to understand how the process should run before it begins, Burger Huyser Attorneys’ Labour Law team can assist from the head office in Linden, Randburg (49 First Avenue, 011 888 0246, after-hours 061 516 6878) and through any of the firm’s Gauteng branches — Sandton, Roodepoort, Bedfordview, Alberton, Pretoria (Menlyn), Centurion, or Midrand. The firm briefs independent chairpersons, drafts and reviews disciplinary codes, prepares employees for hearings, and represents parties at CCMA conciliation and arbitration. Burger Huyser carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and lists labour law and CCMA disputes as an established practice area, with disciplinary hearings called out by name in client feedback.