New guidelines rule on what is fair dismissal Ivan Israelstam Item 60.

4 of the new CCMA Guidelines: Misconduct Arbitrations (the guidelines) states that it is not unfair for employers to make use of the services of third parties such as attorneys to chair disciplinary hearings for employees of their organisations. However, these highly important new guidelines do not give disciplinary hearing chairpersons the right to conduct such hearings in a biased manner. The new guidelines oblige commissioners to assess whether workplace dismissals are fair or unfair, and it is obviously difficult to see how such dismissals can be fair if the presiding officer is biased and if it is shown that the bias of the presiding officer results directly in prejudice to the employee. In the case of Chirwa v Transnet Ltd (2009 4 BALR 350) the dismissal was found by the CCMA to be procedurally unfair. This was due to the bias of the presiding officer of the disciplinary hearing, whose relationship with the accused employee was fraught with animosity. This example shows that employers are still falling short when it comes to regarding the employee's right to an impartial hearing chairperson. The reasons for this include: The employer's intention is to hold a "kangaroo court" and make sure that the employee is dismissed, irrespective of fairness and regardless of the possible consequences. Those employees assigned the task of chairing hearings are not properly trained. The employer does not understand what constitutes bias in terms of the law. There are in fact a number of factors that may suggest that the hearing chairperson could be biased. These include, among others, situations where the chairperson: Has previously had a clash with the accused employee. Has prior knowledge of the details of the case. Unreasonably turns down requests from the employee for representation, witnesses, for the services of an interpreter or other requirements that will make the hearing a fair one. Makes a finding that is unsupported by the facts brought before the hearing. What does not necessarily constitute bias is the relationship of the chairperson to the employer's representative. Neither is the chairperson necessarily biased if he/she refuses to allow legally impermissible evidence, to hear irrelevant testimony or to allow unreasonable adjournments or delays in the process. However, it is difficult for a hearing chairperson to distinguish fairly between reasonably and unreasonably turning down the accused's request for a witness, representative, adjournment or other requirements. The ability to make rulings in this regard that will stand up in court can only be acquired via substantial formal training and solid experience of the hearing chairperson.

In the case of Fawu obo Sotyato v JH group Retail Trust (2001, 8 BALR 864) the employee confessed to having stolen two bottles of beer from the employer and to drinking one of them during working hours. The arbitrator did not accept the confession as valid and also found that the chairperson of the hearing was biased. This was because the chairperson had caught the accused employee with the beers and had been involved in drawing up the charges. This created a reasonable apprehension of bias and rendered the dismissal procedurally unfair. The employee was reinstated with full back pay. In Slabbert v Ikhwezi Truck Tech (Pty) Ltd (2008, 1 BALR 75) the employee alleged that the chairperson of the disciplinary hearing had been biased because he had wanted the employee's job for himself. However, the arbitrator found the dismissal to be fair because: The employee had provided no proof of the allegation that the chairperson wanted the employee's job. There was no evidence that the chairperson had behaved unfairly in conducting the disciplinary hearing or in arriving at his decision. In order to ensure that employers do not lose cases due to chairperson bias or alleged bias at disciplinary hearings, employers must ensure that: Hearing chairpersons have no involvement in or knowledge of the case before the hearing. Hearing chairpersons have a solid understanding of what constitutes apprehension of bias. They contract in a labour law specialist to chair hearings where the employer has no internal official with the necessary qualifications and knowledge to carry out the task properly. Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011 888 7944 or 082 852 2973 or via e-mail at labourlaw@absamail.co.za Our appreciation to Ivan and The Star newspaper for permission to publish this article