Partiality must be avoided at all cost

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Tony Healy

Many disciplinary inquiries are conducted throughout the country every day.

One need only consider that approximately 400 alleged unfair dismissal cases are referred to the CCMA on a daily basis to begin to fathom the number of domestic inquiries being conducted daily.

One of the key aspects of any disciplinary inquiry process is the question of the role of the chairperson, and in particular, the extent to which a chairperson is entitled to play an active role in an inquiry.

This issue grows in importance in a situation where either the company complainant or the alleged offender (or their representative) don’t ask important questions of witnesses, including the alleged offender.

The answers to those questions may be key in determining whether the alleged offender is guilty or not.

Situations of this nature present chairpersons with a conundrum; to reach a verdict without the benefit of answers to important questions may unfairly prejudice the parties.

On the other hand, should a chairperson be tempted to pose questions which ought to have been posed by the parties, the chairperson runs the risk of being accused of partiality and bias.

In legal parlance, an accusation of chairperson bias would be premised upon an allegation by the aggrieved party that the chairperson had “descended into the arena” – the chairperson has become embroiled in the inquiry to such a degree that his/her impartiality has been compromised.

It is often quite rightly suggested that a chairperson who elects to conduct an inquiry in an inquisitorial fashion ultimately rewards one of the parties who did not properly prepare. As a point of departure, it is not possible to chair a disciplinary inquiry in a biased, partial manner.

While, in the short term, it may be relatively simple to “process” a dismissal via internal disciplinary inquiry procedures, it ought to be borne in mind that a wayward verdict and/or sanction will, in all probability, be scrutinised at a later date at the CCMA, Labour Court or a bargaining council.

Second, claims of partial chairpersonship ordinarily emanate from the questioning stance adopted by the chairperson.

More specifically, a chairperson who adopts an inquisitorial modus operandi in an inquiry may, in so doing, become overly zealous, thereby creating a perception that they are aiding one of the parties unfairly to the detriment of the other.

Accusations of this nature typically relate to chairpersons aiding the company complainant.

Allegations of this nature can be avoided by chairpersons displaying overtly impartial conduct and behaviours.

There is nothing necessarily wrong with a chairperson adopting an inquisitorial stance (after all, CCMA commissioners are entitled to do so when adjudicating disputes); however, questions from the chair should be limited to questions of clarity during evidence-in-chief, cross-examination and re-examination.

Only once re-examination has been concluded should a chairperson venture into questions that may be of a more direct, information-gathering nature.

l Book now for Tony Healy’s Seta accredited “Conducting Disciplinary Hearings” workshop (June 27 and 28) by phoning Jenisha on 011 476 1620, e-mailing admin@ tonyhealy.co.za or visiting www.tonyhealy.co.za