The chairperson of an internal disciplinary enquiry should not be biased
[Wednesday, October 07, 2009 14:16:58]
Item 4 of Schedule 8 (The Code of Good Practice: Dismissals) of the Labour Relations Act 66 of 1995 requires an employer to ensure that a fair disciplinary enquiry is held. The enquiry does not need to be formal- it could take the form of a disciplinary meeting. Practice has however developed whereby a more formal disciplinary enquiry is held, presided over by someone who is not biased. In the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 (LC), the Labour Court found that disciplinary enquiries should not be over technical and that our labour law does not follow the “criminal model”. In the case of Karan Beef (Pty) Ltd v Mbovane NO & Others (2008) 29 ILJ 2959 (LC) the Labour Court reviewed an arbitration award which was in the employee’s favour, because the commissioner had made a mistake in applying the test for bias. The commissioner’s decision that the disciplinary chairperson was biased was based on speculation. Moreover, the employee did not ask the chairperson to recuse (withdraw) himself from the hearing, and there was no reasonable apprehension of bias on the part of the chairperson. Care should be taken by employers to appoint a chairperson who is not biased and one who will not cause a reasonable apprehension of bias on the part of the employee.
Rudi Kuhn
Labour law attorney, Pretoria
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