Discipline is a key element in every employment relationship. It is ensured through the implementation of the organisation’s disciplinary policy, where one is available.
This policy outlines the different types of misconduct, the processes to be followed when addressing them, as well as the penalties an employee would face if found guilty. In this case, the penalties are written warnings, demotions, dismissals, and so on.
It is imperative to note that before issuing written warnings, demotions or dismissals, an employee ought to be awarded an opportunity to state their case against any allegation presented. This must be done through a fair disciplinary hearing. There are several boxes to check out to ensure that a disciplinary hearing is fair. One of them is to ensure that there is a neutral or unbiased chairperson. Did you know this? Read on.
The role of the chairperson
A chairperson of a disciplinary hearing is meant to control the proceedings of the hearing and assess the evidence presented by all parties involved to determine the verdict. It is evident that a lot of responsibility is bestowed upon this individual because their verdict determines the fate of the defendant as far as their employment is concerned.
In terms of controlling the proceedings, the chairperson takes the full lead in setting the tone of the disciplinary hearing. They have complete power and authority over the proceedings of the hearing. Should anything go wrong, the chairperson would have to answer for it. This is because a disregard or oversight of these technicalities can lead to a disciplinary hearing process being seen as unfair.
The impartiality
To clearly explain this, reference will be made to Lesedi R. Rammika’s book, “The Litis Generals: Handbook Ensemble of Precedence.” The book states that as one of the requirements of a fair disciplinary hearing, the person taking the disciplinary decision should be unbiased and should enter into the proceedings with an open mind. Bias is defined as having some form of inclination or prejudice towards one side of the table. This can be brought about by various things, e.g. an existing relationship, a previous negative encounter, personal vendettas, and so on. A biased chairperson will always rule in the favour of their preferred party or rule against their least favourite party. Failure to comply with this requirement will lead to a violation of the principle of natural justice.
To address the element of being open minded, the key is to conduct the hearing in good faith. To do this, the chairperson of a disciplinary hearing must focus on the allegation, and not the person. The charge remains an allegation until proven otherwise. It is therefore vital to select an individual who is as much removed from the situation and the parties involved as possible. Everything mentioned above ensures procedural fairness, which is defined as providing an employee with an opportunity to defend themselves against allegations via a fair disciplinary hearing.
The conclusion
Failure to provide an unbiased chairperson during a disciplinary hearing could contribute to it being considered unfair. If a hearing is deemed unfair, any outcome determined from it will be considered wrongful.
According to Section 24(1)a-b of the Trade Disputes Act, “In any case where the Court determines that an employee has been wrongfully dismissed or disciplined, the Court may, subject to its discretion to make any other order which it considers just, in the case of wrongful dismissal, order reinstatement of the employee, with or without compensation, or order compensation in lieu of reinstatement; or in the case of wrongful disciplinary action, order the payment of such compensation as it considers just.”
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