Decisions taken at disciplinary enquiries are often overturned at the CCMA. Not because it was unfair, but mostly because of technical aspects. The issue with technical aspects arises from the chairperson not being skilled enough in chairing disciplinary enquiries.
There is a misconception that employers may not appoint skilled external persons to chair disciplinary enquiries. This is not true at all. The appointment of an external skilled person to chair disciplinary enquiries are in many (if not at all) instances more desirable because such a person will be:
- Totally unbiased and neutral with no prior knowledge of the matter
- Have a good working knowledge of the basic labour law.
- Skilled in dealing with such matters and with a good knowledge of the correct procedures to be followed.
- Able to separate facts from opinions and hearsay.
- Capable of taking notes during proceedings
- Have experience in weighing up evidence so as to arrive at a conclusion
- Able to consider all factors that need to be considered in arriving at a suitable and fair sanction.
- Able to justify and give reasons upon which the sanction is based.
There are no legislative guidelines on this – these guidelines have evolved from custom and practice and considering the requirements of a fair procedure.