The presiding officer (PO) of a disciplinary hearing is required to be neutral and objective and must take into account all relevant evidence from both sides before arriving at a verdict. Later in the process, if the verdict is guilty, the PO must decide on the corrective action most appropriate to the circumstances.
However, assessing evidence properly is more difficult to achieve if the PO’s collection of the evidence is hampered unduly. Such obstacles could, for example, include the absence of key participants, unjustified objections raised, unnecessary adjournments and disruptive behaviour by the parties at the disciplinary hearing. These potential obstacles to the proper collection of evidence make it essential that the PO keeps control of the proceedings from beginning to end.
In addition to the presiding officer participants in a disciplinary hearing would typically include the accused, the accused’s representative, the complainant (person bringing the charges on behalf of the employer), an interpreter (where required), witnesses and a scribe. Sometimes a HR advisor also attends for procedural reasons.
Where parties raise procedural objections the PO must give these serious consideration, assess their validity and deal with those problems that merit correction.
Interruptions may also be necessary where parties need time to consider responses to issues raised during the hearing. POs need to be expertly trained to know how to evaluate each such request and to decide whether it would be proper to grant them or not. Also, POs might themselves need adjournments, in order, for example, to consider objections or proposals raised by the parties.
Complainants seldom, if ever, behave intentionally disruptively during disciplinary hearings because an orderly hearing is in the best interests of their goal to prove the employee guilty. Therefore, while the complainants might use underhand tricks, disruption of the process is unlikely to be amongst them.
However, where the accused and his/her representative know that he/she is guilty and that they have no legitimate way of defending the charges, it may happen that they use disruptive tactics such as walk-outs, shouting, threats, hammering the table or toyi toyi-ing. Such parties trade on the fact that the accused has a basic right to be present at his/her hearing and for his/her representative to be present as well. They may behave badly in the hope of either having the hearing scrapped altogether or with the aim of getting evicted from the proceedings. Such eviction could then be used at the CCMA as grounds for procedurally unfair dismissal.
The complexities I have outlined above necessitate that those assigned to chair hearings are properly trained in controlling disciplinary hearings so that both parties can submit their evidence and so that the PO is able receive, understand and assess it fairly.
While developing this skill is tricky the biggest reason for employers losing CCMA cases on procedural grounds is the employer’s lack of appreciation for the need for POs to run hearings properly.
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