It all too frequently occurs that employers conspire to get rid of employees despite the absence of genuine evidence of the employees’ wrongdoing. This employers do for a wide variety of reasons such as:

• The employer dislikes the employee for reasons unrelated to the workplace. For example, the manager fires the employee, who goes out with the manager’s daughter, because he does not like the biker gang he belongs to.
• The employee is unwilling to grant her superior sexual favours
• The employee has clashed with a key executive who has threatened to resign
• The employee has reported the employer to officialdom for violating the law
• The manager is under pressure to perform and uses the dismissed employee as the scapegoat for performance problems
• The employer feels that it is time that it shows the workers who is boss and picks on the first employee who makes a mistake
• The shop steward stands up for the employee’s rights and is labelled as a trouble maker.

Employers then conspire to get rid of such undesirables through the use of a number of tricks including:

• Firing the employee orally and then pretending that the employee absconded
• Framing the employee for poor performance or misconduct
• Provoking the employee into committing misconduct
• Setting up a disciplinary hearing where the presiding officer has been primed in advance to fire the employee.

This latter trick clearly renders the presiding officer biased. This constitutes a serious breach of the employee’s right to fair procedure. Where the employer is caught out using such a biased presiding officer the CCMA has no mercy. The employee is likely to be reinstated with full back pay or to be granted heavy compensation to be paid by the employer.

Such bias on the part of a disciplinary hearing chairperson can be discovered in a number of ways including:

• The chairperson grants the complainant (person bringing the case for the employer) the opportunity to obtain more evidence, take adjournments or interrupt the employee; but does not grant the employee similar rights.
• The presiding officer ignores evidence brought by the employee
• The chairperson is chosen to hear the matter despite having been the one who caught the employee breaking the rule. In the case of FAWU obo Sotyatu vs JH group Retail Trust (2001, 8 BALR 864) the arbitrator found that the manager who chaired the disciplinary hearing had been the one who had apprehended the employee. This was found to indicate bias and was unfair. The employee was reinstated with full back pay.
• The chairperson does things early in the hearing or even before the hearing that indicate that he/she has decided in advance that the employee is guilty. For example, in the case of Mashigo vs Yanni Technologies (Pty) Ltd
• [2017] 12 BALR 1336 (CCMA) Mashigo was dismissed for misconduct.

The Commissioner noted that the respondent’s attorneys had told the applicant before the disciplinary inquiry that a decision had already been taken to dismiss him. The presiding officer had also conversed with the initiator and the respondent’s witnesses before and during the hearing, creating a reasonable apprehension of bias. The applicant was reinstated with retrospective effect.

The fact that arbitrators do not hesitate to punish biased or inept presiding officers means that employers should:

• resist the temptation to ‘fix’ the outcome of disciplinary hearings in advance
• avoid misusing disciplinary processes to pursue private agendas
• ensure that only impartial and properly trained persons chair disciplinary hearings.

To register for our 7 May webinar on Lockdown Labour Law please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za