Who Is Allowed to Chair a Disciplinary Hearing in South Africa?

A disciplinary hearing in South Africa is chaired by an impartial person appointed by the employer, and the controlling standard is set by item 4 of Schedule 8 (the Code of Good Practice on Dismissal) to the Labour Relations Act 66 of 1995, which requires the employer to appoint a chairperson who has “the necessary knowledge and skills” to preside fairly. There is no statutory requirement that the chairperson be a legal professional — the test is functional competence and impartiality, judged against the audi alteram partem principle and the CCMA’s and Labour Court’s procedural-fairness jurisprudence. In practice the chairperson is commonly an external labour law attorney or consultant, a senior HR practitioner, a co-chair pairing a line manager with an external specialist, or in smaller workplaces a line manager with labour-law training. A procedurally unfair dismissal entitles the employee to up to 12 months’ compensation under section 194 of the LRA, so the chairperson’s procedural conduct is a real liability issue for the employer, not a formality.

The Legal Framework Governing the Disciplinary Chairperson

The Labour Relations Act 66 of 1995 (LRA) and Schedule 8 (the Code of Good Practice on Dismissal) are the controlling instruments for any disciplinary hearing in South Africa. Item 4 of Schedule 8 is the most-cited provision in any procedurally-fair-dismissal dispute because it sets the minimum procedural standards the chairperson must follow.

Item 4(1) requires the employer to appoint a chairperson who has “the necessary knowledge and skills” to preside fairly. The standard is functional, not a formal legal qualification. The underlying fairness principle is audi alteram partem — hear the other side — and that principle frames every decision the chairperson makes, from the order of evidence to the weight given to mitigation.

Section 188 of the LRA sets the substantive-and-procedural fairness standard for any dismissal. Section 194 caps compensation for an unfair dismissal at 12 months’ remuneration, and section 187 raises that cap to 24 months for an automatically unfair dismissal. The practical point for any employer is that a procedurally unfair dismissal can cost the business up to 12 months’ remuneration in a single CCMA award — the chairperson’s procedural discipline is therefore not a technicality, but a meaningful liability issue that is most efficiently managed by appointing an experienced chairperson from the outset.

Who May Chair: Categories of Chairperson Used in Practice

Schedule 8 sets the floor; the employer’s policy and the nature of the allegation normally determine where the appointment lands. The categories below are the ones most commonly encountered in Gauteng workplaces.

Category	Typical Use	Strengths	Watch-Outs
External chairperson (labour attorney, labour consultant, or retired CCMA commissioner)	Serious or complex matters; allegations that could lead to dismissal	Independence; procedural expertise; credibility of outcome at CCMA	Cost; availability; need to brief the chairperson on facts in advance
Internal HR manager	Larger workplaces with a dedicated HR function	Institutional knowledge; cost-effective	Must be demonstrably independent of the underlying incident; risk of perceived bias if HR has been involved in the investigation
Co-chairpersons (line manager paired with an external specialist)	Medium-sized employers; matters where internal context matters	Spreads procedural expertise across the bench; preserves internal context	Coordination cost; risk of the line manager dominating the process
Senior line manager	Less serious matters in workplaces with established disciplinary training	Cost-effective; quick to convene	Higher bias risk because of the day-to-day working relationship with the employee
Owner or director	Small businesses with no other suitable person available	Speed; direct knowledge of the business	High appearance of bias; increasingly disfavoured by CCMA commissioners

One role the chairperson must never occupy is prosecutor. The presiding officer and the person presenting the employer’s case must be separate people. A manager who investigated the incident may give evidence as a witness, but should not then chair the hearing that follows.

Who Appoints the Chairperson and How

The employer appoints the chairperson. This is the employer’s responsibility under item 4 of Schedule 8, and the appointment must be made before the hearing is scheduled. The appointment should be recorded in writing, with clear terms of reference covering the charges, the documents, the procedure to be followed, and the expected output — usually written findings and, where the policy permits, a recommended sanction.

The employee does not choose the chairperson, but retains the right to object to the appointment on grounds of perceived bias before the hearing begins. A chairperson appointed after the hearing has effectively commenced, or appointed in circumstances that signal a pre-determined outcome, may render the process procedurally unfair and expose the employer to a successful referral at the CCMA or in the Labour Court.

The Chairperson’s Required Knowledge and Skills

Item 4(1) requires the chairperson to have “the necessary knowledge and skills.” In practice, that means:

• Working knowledge of the LRA, Schedule 8, and the principles of procedurally fair dismissal.
• Familiarity with the leading Labour Court and CCMA authorities on procedural fairness, including the right to be heard, the right to cross-examine, and the duty to give reasons.
• Practical skill in running a hearing — managing evidence, allowing cross-examination, weighing probabilities, and writing reasoned findings.
• The ability to write a clear, defensible outcome that will withstand scrutiny at the CCMA or in review proceedings.

There is no statutory licensing requirement for chairpersons, and there is no national register of accredited chairpersons. Accredited training — through the CCMA, the Department of Employment and Labour, or recognised labour-law training providers — materially reduces the risk of a procedural-unfairness finding and is a useful filter when shortlisting an external chair.

Conflicts of Interest and Disqualifying Bias

A chairperson must be impartial, both in fact and in appearance. The CCMA and Labour Court apply an objective standard: would a reasonable, informed observer perceive the chairperson as capable of decided the matter on its merits?

Typical disqualifying situations include:

• Direct line-management of the employee.
• Prior involvement in the investigation, including signing off the investigation report.
• Personal witnessing of the alleged misconduct.
• A personal dispute with the employee that predates the hearing.
• A pre-formed view about the employee’s guilt formed before evidence is led.

The employee may raise a bias objection at the outset of the hearing. The chairperson rules on the objection (usually after brief argument from both sides) and may recuse themselves if the objection is upheld. Failure to recuse in a clear case is a common ground for a successful procedural-unfairness referral at the CCMA.

The Chairperson’s Role and Duties During the Hearing

Once appointed, the chairperson runs the hearing and is responsible for the procedural fairness of the entire process. The standard order of proceedings is set out below.

1. Open the hearing, confirm the employee understands the charges, and confirm the right to be represented.
2. Confirm procedural rights under item 4 (opportunity to respond, cross-examine, lead witnesses, and mitigate).
3. Receive opening statements (usually brief).
4. Receive evidence-in-chief, with cross-examination by the employee or their representative.
5. Receive argument on the evidence.
6. Receive mitigating circumstances and character evidence.
7. Make factual findings on the balance of probabilities — the evidentiary standard is balance of probabilities, not beyond reasonable doubt.
8. Decide on the sanction, where the policy authorises the chairperson to do so, or recommend a sanction to the employer where the policy reserves sanction to a more senior manager.
9. Issue a written outcome with reasons — the reasons must be sufficient for the employee to understand why the finding was made and for any reviewing forum to test them.

Burger Huyser Attorneys’ Labour Law practice, led by specialist consultant Marius Ferreira, services disciplinary hearings across Gauteng from the firm’s head office in Linden, Randburg, and supports both employers convening hearings and employees responding to allegations — which gives the team practical insight into how the procedural steps above are most likely to be tested at the CCMA.

Common Procedural Mistakes That Undo an Otherwise Fair Hearing

Most procedural-unfairness findings at the CCMA flow from a small number of recurring mistakes. Each of the items below is a recognised ground for a successful referral.

• Failing to give the employee a meaningful opportunity to respond to each charge individually.
• Allowing the prosecutor to lead evidence without permitting the employee or their representative to cross-examine.
• Not considering mitigating circumstances or character evidence before deciding on sanction.
• Issuing a sanction that is disproportionate to the misconduct — the proportionality principle is well-developed in CCMA jurisprudence, and dismissal is reserved for serious misconduct, repeated misconduct after a final warning, or breach of trust.
• Recording inadequate or no reasons for the finding — silence on the reasoning is a recognised ground for review.
• Proceeding with the hearing while the employee is on sick leave without reasonable accommodation.
• Treating the chairperson as a rubber-stamp for management’s preferred outcome rather than as an independent arbiter.

For employers, the most reliable way to avoid these mistakes is to appoint an experienced chairperson from the outset and to insist on a written outcome with reasons. The CCMA will look at the record, not the oral exchange, when assessing procedural fairness.

The Chairperson and the Sanction Decision

Whether the chairperson decides the sanction or only recommends it depends on the employer’s disciplinary policy and the terms of reference issued at appointment. Where the policy gives the chairperson the authority to decide, the chairperson must still apply the proportionality principle — dismissal is reserved for serious misconduct, repeated misconduct after a final warning, or breach of trust.

Where the policy reserves sanction to a senior manager, the chairperson’s recommendation should be reasoned and should apply the same proportionality standard. Either way, the employee must be informed of the sanction and the reasons in writing, and must be informed of the right to refer the dispute to the CCMA or a bargaining council within 30 days of the date of dismissal (or the date the outcome becomes known, where dismissal does not follow).

Practical Information on Appointing a Chairperson

A few practical points to consider when appointing an external chairperson:

• Fees are typically charged either at an hourly rate or as a per-hearing fixed fee, with a separate fee for writing up findings where a written record is required.
• Fees vary by seniority (retired CCMA commissioners and senior labour counsel command higher rates) and by region. Employers should request a written fee quote before confirming the appointment.
• The employer pays. There is no mechanism by which the employee bears the cost of the chairperson.
• When choosing an external chairperson, look for demonstrable LRA and Schedule 8 experience, accredited training, and the absence of any conflict of interest with the company’s management or directors.
• The hearing record (minutes, evidence, written findings) should be kept for at least the duration of any subsequent dispute and usually for the duration of the employee’s service.

Frequently Asked Questions

Who can chair a disciplinary hearing in South Africa?

Anyone appointed by the employer who has the “necessary knowledge and skills” under item 4(1) of Schedule 8 to the Labour Relations Act 66 of 1995. In practice, this is usually an HR manager, a labour law attorney, a labour consultant, or a retired CCMA commissioner. The chairperson need not be a legal professional.

Does the chairperson have to be an attorney?

No. The LRA does not require the chairperson to be an attorney or an admitted legal professional — the standard is knowledge and skills, not formal legal qualification. Many external chairpersons are labour consultants or retired CCMA commissioners rather than attorneys, and many internal chairpersons are senior HR practitioners.

Who appoints the chairperson?

The employer appoints the chairperson — this is the employer’s responsibility under item 4(1) of Schedule 8. The appointment is internal; the employee does not choose the chairperson, but may raise a bias objection before the hearing begins.

Can an employee object to the chairperson?

Yes. An employee may object to the chairperson on grounds of actual or perceived bias — for example, where the chairperson is the employee’s direct line manager, was involved in the underlying investigation, or has a personal dispute with the employee. The chairperson rules on the objection, usually after brief argument from both sides, and may recuse themselves if the objection is upheld.

What happens if the chairperson is biased?

A biased chairperson renders the disciplinary process procedurally unfair, which in turn makes any subsequent dismissal unfair at the CCMA or Labour Court. Compensation for unfair dismissal is capped at 12 months’ remuneration under section 194 of the LRA (24 months for automatically unfair dismissal), so the financial consequences for the employer of appointing a biased chairperson are real.

Can the chairperson also be the prosecutor?

No. The roles must be separated. The chairperson’s function is procedural and fact-finding; the prosecutor (typically the line manager or HR representative) presents the employer’s case. Conflating the two is a well-recognised ground for a procedural-unfairness finding.

What qualifications should a chairperson have?

Working knowledge of the Labour Relations Act, Schedule 8, and procedural fairness principles; practical skill in running a hearing; and the ability to write reasoned findings. Accredited training through the CCMA, the Department of Employment and Labour, or recognised labour-law training providers is a strong indicator of competence, though it is not statutorily required.

Does the employee get to choose the chairperson?

No. The employer appoints the chairperson. The employee’s only input is the right to object on bias grounds. Where the employer’s choice of chairperson is unreasonable or partial, the employee can raise that as part of a subsequent procedural-unfairness challenge.

Can the chairperson decide the sanction?

It depends on the employer’s disciplinary policy and the chairperson’s terms of reference. Many policies give the chairperson the authority to decide both the finding and the sanction. Other policies reserve sanction to a more senior manager, with the chairperson’s role limited to findings and a recommendation. Either way, the chairperson must apply the proportionality principle — dismissal is reserved for serious misconduct, repeated misconduct after a final warning, or breach of trust.

Who pays the chairperson?

The employer pays. There is no mechanism by which the employee bears the cost of the chairperson. Where the chairperson is an internal employee, the cost is borne by the employer as part of the employee’s salary and time; where the chairperson is external, the employer pays the agreed fee directly.

If you are an employer who needs an external chairperson for an upcoming disciplinary hearing, or an employee who needs representation or advice about a hearing that has been scheduled, contact Burger Huyser Attorneys’ Labour Law practice on 011 888 0246 (after-hours 061 516 6878) or visit the head office at 49 First Avenue, Linden, Randburg, 2195. The firm’s labour specialist, Marius Ferreira, services disciplinary hearings across Gauteng through the firm’s branch network in Sandton, Roodepoort, Pretoria Menlyn, Centurion, Bedfordview, Alberton, and Midrand. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”), and the head office is the practical first point of contact for an instruction. Initial consultations are booked through the head office; bring the charge sheet, the employer’s disciplinary policy, and any prior correspondence so the appointment can be scoped quickly.