Occasionally I come across a “Findings of a disciplinary hearing” so bad that I wonder how a chairperson can justify committing their findings to writing. I regularly see findings that indict the chairperson and demonstrate their clear BIAS. In brief, a chairperson has to do the following:
- The chairperson has to keep the meeting (yes that is what a hearing is) in good order, this is simply to follow procedure and ensure that everyone has equal opportunity to state their case. No shouting, threats or aggressive behavior of any kind.
- The chairperson has to hear all representations and testimony. Despite company’s paying for outside chairpersons, the chairperson is NEVER there to make a finding favorable to the company. The chairperson has to remain impartial. The only consideration the chairperson has to give, is to the evidence and to the testimony of the witnesses.
- The chairpersons job is ONLY to determine based on the facts presented to him or her whether on the balance of probability the respondent is GUILTY or NOT GUILTY.
I keep seeing “findings” that are so one sided that it was clear that the chairperson did not consider all the evidence and was interested only in delivering not only a guilty verdict, but also a notice of dismissal as well. This is gross abuse of the disciplinary process. If the chairperson is not aware of a respondents disciplinary record, how can the chairperson issue a notice of termination? The chairpersons job is solely to weigh up up the evidence and make a finding.
Any disciplinary consequences based on the finding of the chairperson, must follow the employers established disciplinary codes and processes. Where a chairperson assumes an HR role, that company when taken to the CCMA, can expect to have a finding made against them.