Workplace & conduct · 01
Independent chairing of disciplinary and grievance hearings
Pre-hearing directions; the hearing itself, conducted on the record; and a written, reasoned ruling that sets out the charges, the evidence, the findings on each charge, the mitigating and…
Pre-hearing directions; the hearing itself, conducted on the record; and a written, reasoned ruling that sets out the charges, the evidence, the findings on each charge, the mitigating and aggravating factors and the sanction — in the form a commissioner will later read.
Employers who need an independent presiding officer — because the matter is senior, because everyone internal is conflicted, or because the last one was overturned.
The most common reason an employer loses at the CCMA is not the substance but the record — charges drafted too narrowly to cover what the evidence actually proved, or a ruling that states a conclusion without the reasoning that supports it.
The law it sits under
The framework this work answers to.
Schedule 8 to the Labour Relations Act 66 of 1995 — the Code of Good Practice: Dismissal — sets the standard a commissioner will apply. Item 4 deals with fair procedure; item 7 sets the substantive guidelines in misconduct cases: whether a rule existed, whether the employee was aware of it or could reasonably be expected to have been, whether it has been applied consistently, and whether dismissal is an appropriate sanction. Both limbs have to hold. A procedurally immaculate hearing on a rule that was never communicated fails.
How the engagement runs
What you are committing to.
The charges are settled before the hearing is convened, because most hearings are lost on charges that do not match the evidence. The hearing is chaired independently, on the record, with the parties’ rights explained and exercised. The deliverable is a written ruling with reasons on both merits and sanction, in the form that will be read afterwards by a commissioner rather than by the employer.
Independence is the point of the engagement. A chairperson who reports to the person bringing the charge gives the employee a ready-made procedural attack, and in a small organisation that is almost unavoidable without going outside.
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