Appoint your chairperson carefully
The general rule is that a presiding officer (whether it be a Judge, Commissioner or Chairperson) must be unbiased and objective in order for both parties to have a fair trial. Employers often instruct independent chairpersons (someone from outside the business) to chair disciplinary hearings so that employees cannot later claim that the chairperson was biased. Although this may prove successful at times, this becomes a fairly expensive exercise for larger organisations who find themselves disciplining employees on a regular basis. It is therefore common for larger organisations to appoint an internal chairperson.
The Metal and Engineering Industries Bargaining Council recently issued an arbitration award (which is not a binding judicial precedent) where a Commissioner had to determine whether the internal chairperson was obliged to recuse himself because he was biased.
The employee argued that the chairperson was biased in that he had knowledge about the matter prior to the hearing. The chairperson refused to recuse himself because, in his opinion, the charges were so severe that they had to be brought to his attention prior to the hearing. The chairperson also relied on the fact that it was normal for him to be party to some of the prior discussions. More importantly, the chairperson relied on the fact that he had not seen all of the evidence, he was only aware of “some of the details”.
The arbitrating commissioner did not agree with the chairperson and was of the view that “it is improbable that any chairperson can treat evidence impartially in circumstances where the chairperson is acquainted with at least some of the facts relating to the matter. The attack on procedure therefore succeeds.” In other words, the chairperson ought to have recused himself.
Employers are advised to err on the side of caution and ensure that a chairperson that is appointed to chair an internal disciplinary hearing is objective and has not had any prior involvement in the matter. It is advisable for employers, prior to investigating a matter, to strategically identify the individuals that will be involved in the investigation and privy to any discussions to ensure that the contemplated chairperson is completely excluded from the process. In other words, the chairperson should not be actively involved the investigation nor involved in meetings where evidence is discussed. If this is not possible, because a business is fairly small and the investigation process cannot escape the knowledge of each and every employee, employers may then need to consider appointing an external chairperson, provided that the external chairperson is objective.
ASSOCIATE PARTNER, Shepstone & Wylie Attorneys
EMPLOYMENT LAW DEPARTMENT