What Type of Questions Is a Chairperson Allowed to Ask During a Disciplinary Hearing?

A disciplinary-hearing chairperson in South Africa may ask only questions that are relevant to the alleged misconduct on the charge sheet, that clarify evidence already led by the parties, and that respect the employee’s right to be heard under item 4 of Schedule 8 (the Code of Good Practice: Dismissal) to the Labour Relations Act 66 of 1995. The chairperson is not a prosecutor and has no authority to lead evidence, coach a witness, ambush the employee with new allegations, or ask questions designed to entrap — overreach on any of those points is a recognised ground on which a CCMA commissioner can later find the dismissal procedurally unfair. In practice the permitted categories break into three groups: clarifying questions on ambiguous evidence already on record, follow-up questions testing the consistency of a witness’s version, and questions aimed at testing the credibility of a witness where the testimony genuinely conflicts with other evidence.

The Source of the Chairperson’s Questioning Power

The chairperson does not derive questioning authority from a generic managerial discretion or from the contract of employment. The power sits inside the duty to determine whether the alleged misconduct is substantiated on a balance of probability, and that duty is anchored in the Labour Relations Act 66 of 1995 read with Schedule 8 (the Code of Good Practice: Dismissal).

Source	What it provides
Labour Relations Act 66 of 1995 (LRA), section 188	Substantive fairness — a dismissal must be for a fair reason (conduct, capacity, or operational requirements) and effected in accordance with a fair procedure.
Schedule 8 to the LRA, item 4	Procedural fairness — the employee must be informed of the allegations, given reasonable time to prepare, allowed to be present, and given a chance to respond to the allegation before any disciplinary outcome is taken.
The audi alteram partem rule of natural justice	The constitutional and common-law minimum right to be heard, which overrides any conflicting term in the employer’s disciplinary code.
The employer’s disciplinary code and the contract of employment	May supplement the statutory minimums but cannot reduce or override them.

The chairperson sits as an independent arbiter of procedure, not as an advocate for the employer who appointed them. Where the chair starts acting as a prosecutor — even with the intention of “helping” the case along — they have stepped outside the role that Schedule 8 and the LRA assign to them.

What the Chairperson May Do: Permitted Categories of Question

The chairperson’s questioning function is, at its core, a clarification tool. The chair may put questions to the employee or to any witness in order to clarify any issue arising from the evidence led, and the categories below cover what that clarification legitimately looks like.

• Clarifying questions — to clear up ambiguity, dates, sequence of events, or terminology that has come up in evidence.
• Follow-up questions on evidence-in-chief — to test internal consistency, completeness, or accuracy of a version already led by a witness.
• Credibility-testing questions — to resolve a genuine conflict between two witnesses where the contradiction is material to the charge.
• Questions on documentary evidence — to confirm the source, authenticity, or meaning of an exhibit already before the hearing.

Each of these categories is bounded by the same two tests: the question must be relevant to the charge, and it must respect the employee’s right to be heard. A question that flunks either test is presumptively improper, regardless of how it is phrased.

What the Chairperson May Not Do: Out-of-Bounds Questioning

The line between legitimate clarification and improper questioning is not always obvious on the day. The categories below are recognised in practice and in arbitration awards as out-of-bounds, and a chair who drifts into any of them has crossed the line even where the underlying intent is benign.

• Leading or coaching questions — telling a witness what the answer should be is the role of a prosecutor, not an impartial chair.
• Questions on uncharged misconduct — anything not on the charge sheet is a separate enquiry and cannot form the basis of a sanction for the matter being heard.
• Ambush or surprise questions — questions that introduce a new allegation the employee has had no chance to prepare for breach audi alteram partem.
• Entrapment questions — phrasing designed to elicit an admission rather than a truthful answer is improper and weighs against the credibility of any such “admission” obtained.
• Repetitive or oppressive questioning — badgering a witness past the point where the answer has been given is a fairness defect on its own.

A chair who notices themselves drifting into any of the categories above should stop, step back, and invite the parties to lead the relevant evidence rather than pursuing the line themselves.

The Audi Alteram Partem Rule and the Right to Be Heard

Item 4 of Schedule 8 entitles the employee to know the case against them and to respond to it before any outcome is taken. That right is not procedural window-dressing — it is the substantive content of what procedural fairness means at a misconduct hearing. Chairperson questions that close off that right, for example by introducing fresh allegations mid-hearing, undermine procedural fairness regardless of whether the substantive outcome was correct.

The employee retains the right to answer, decline to answer, or seek a postponement on any question they consider unfair. A postponement request made mid-question should be considered on its merits rather than refused as a matter of course — refusing it without reasons often becomes a fairness defect of its own at the CCMA.

Relevance and the Charge-Sheet Limit

The charge sheet defines the scope of the enquiry and therefore the scope of any permissible questioning. A question that strays into alleged misconduct not on the charge sheet is presumptively improper — even where the new issue is ultimately revealed to be substantively true. The chair cannot use their questioning function to widen the hearing into matters the employee was never put on notice to answer.

Where new misconduct genuinely emerges during the hearing, the chair should suspend proceedings, formally amend or add charges, reset timelines for preparation, and only then resume. Pressing on without that reset is one of the more common procedural defects that surface in arbitration awards.

The Bias Prohibition: Why “Helpful” Questions Get Disallowed

The chairperson is required to be, and to be seen to be, impartial. Questioning perceived as helping one side is a fairness defect even where the chair’s actual intent is benign. A well-meaning chairperson who cross-examines the employee hard while letting the employer’s witnesses give unchallenged evidence has crossed the line just as clearly as one who openly favours the employer.

Perceived bias is one of the easiest unfair-conduct findings to make at the CCMA stage because it does not depend on intent — only on conduct. A chair who notices their own questioning tilting should hand the questioning back to the parties rather than continuing.

This is also the gap a Labour Law practice such as Burger Huyser Attorneys’, anchored by specialist labour consultant Marius Ferreira and routed through the firm’s Gauteng branches, is set up to close for chairpersons who want a second pair of eyes on the procedure before the hearing opens or for employers who need a fully independent presiding officer appointed.

Practical Examples: Permitted vs. Impermissible Questioning

The table below translates the categories above into concrete questions a chair might face during a typical misconduct hearing. It is not exhaustive, but it shows where the line lands in practice.

Situation	Permitted?	Why
“You said the incident happened on 14 March. Can you confirm the date and time?”	Yes	Pure clarification on a witness’s own evidence.
“If the policy requires authorisation above R10,000, did your manager approve the spend?”	Yes	Follow-up on documentary and witness evidence already before the chair.
“Why did you not follow the procedure you described in your evidence?”	Yes	Tendering a contradiction the chair is entitled to explore.
“Isn’t it true you have done this before?”	No	Goes to prior uncharged misconduct not on the charge sheet.
“Don’t you agree your conduct was dishonest?”	No	Leading and conclusory — channels the witness’s answer.
“Have you considered how this has affected your team?”	No	Emotional or opinion-eliciting question, not evidence-testing.
“Mr X, can you confirm you saw the employee leave at 17:00?”	Yes	Direct credibility testing of an opposing witness’s version.

Consequences of Overreach

A procedurally unfair dismissal can be reinstated or compensation-ordered at the CCMA under section 194 of the LRA. Compensation is capped at 12 months’ remuneration for ordinary unfair dismissals and 24 months for automatically unfair dismissals. Overreach by the chairperson is rarely the only defect on review, but it is typically the defect that converts a borderline substantive case into a successful procedural challenge.

Step	Forum	Statutory basis	Time limit
Refer the unfair-dismissal dispute	CCMA (or a relevant bargaining council)	Section 191 of the LRA	Within 30 days of dismissal
CCMA arbitration — fairness test	CCMA arbitrator	Sections 188 and 191 of the LRA, read with Schedule 8	Concluded as soon as reasonably possible after referral
Review of a CCMA award	Labour Court (a division of the High Court)	Section 145 of the LRA	Within six weeks of the award being issued
Remedies if dismissal found unfair	CCMA or Labour Court	Section 194 of the LRA	Reinstatement, re-employment, or compensation (capped per the schedule above)

Records of the chairperson’s questions are usually captured in the transcript or recording of the hearing and become key evidence at any subsequent arbitration. A chair who keeps the record clean — questions short, on the charge sheet, and clearly tied to evidence already on record — gives the arbitrator little to criticise.

Frequently Asked Questions

Can a chairperson reject a question put by the employer or the employee?

Yes. The chairperson rules on relevance and procedural fairness throughout the hearing. If either party tries to put a question that goes beyond the charge sheet, is leading, or otherwise breaches procedural fairness, the chair can refuse to allow it and note the refusal on the record. This is one of the core ways the chair discharges the duty to control the proceedings.

Can an employee be dismissed for refusing to answer a chairperson’s question?

It depends. Refusing to answer a properly framed, relevant question can be treated as failure to cooperate with the disciplinary process and weighed against the employee at the sanction stage. Refusing to answer an improper question — one that is leading, off the charge sheet, or aimed at uncharged misconduct — is not a cooperation failure and should not weigh against the employee.

Can the chairperson call a witness who has not been called by either party?

Generally no. The chairperson may not lead evidence. Where a material gap appears, the chair should invite either party to lead the relevant witness rather than calling them directly, because doing so blurs the line between arbiter and prosecutor.

Is a chairperson allowed to ask questions about the employee’s previous disciplinary record?

Only in narrow circumstances. A clean record is generally irrelevant to whether the alleged misconduct occurred, but prior warnings for the same or similar misconduct are relevant to sanction once substantiation is settled. A chair who starts cross-examining the employee on prior unrelated records mid-hearing is overreaching.

Does the employee have a right to legal representation at the hearing?

There is no statutory right to legal representation at a workplace disciplinary hearing, as opposed to the CCMA, though many employers’ policies allow it. Some sectoral collective agreements grant a right to representation at internal hearings; the SACTWU and similar agreements are typical examples. Where no right is created, the employee is entitled to be assisted by a trade union representative or a fellow employee.

Can the chairperson’s questioning be reviewed if the employee is dismissed?

Yes. At the CCMA under section 191 of the LRA, the commissioner reads the transcript, listens to the recording, and assesses procedural fairness under Schedule 8. Chairperson overreach is a recognised basis on which an arbitration award can be set aside at the Labour Court under section 145 of the LRA.

If you are facing a disciplinary enquiry — as employee, employer, or presiding chairperson — and need practical labour-law input on procedure, the charge-sheet scope, or the boundaries of permissible questioning, contact Burger Huyser Attorneys’ Labour Law team through the Randburg head office on 011 888 0246 (after-hours 061 516 6878) or at any Gauteng branch. The firm handles disciplinary-hearing preparation, presiding-chair briefings, and CCMA referrals across Gauteng, and the practice is supported by the firm’s standing track record across family-law, commercial, and litigation matters (4.8/5 average across 250+ Google reviews, Trustindex verified). Initial consultations are booked through the head office or your nearest branch.