Outcome And Sanction Imposed

The decision by the chairperson must be based on the evidence. A decision must always be indicated. This does not require a ‘detailed judgment’. Brief reasons will be sufficient, provided those reasons indicate to the employee why certain conclusions were reached.

However, careful and elaborate reasons given may well-serve a purpose. Compelling reasons may deter a union from pursuing the matter further and may persuade an arbitrator in court that the chairperson applied his/her mind carefully before making a decision.

At this stage, the chairperson should adjourn to study and make a synopsis of all facts and circumstances that were presented during the hearing. The chairperson shows from the facts and on a balance of probabilities whether the employee is guilty/not guilty. An open mind must be applied at all times before making a decision.

The chairperson should, primarily, evaluate the elements of substantive fairness, as discussed in the section on substantive fairness. The greatest challenge for a chairperson is to distinguish and analyse evidence that might even be contradictory, and facts that were presented during the hearing. A decision of guilt must be in line with the principles discussed and a decision must so be made on a balance of probabilities.

• Depending on circumstances, it is not always possible to make a ruling on the same day. It is not a prerequisite to make a decision on the same day. However, it should be done as soon as possible. After a decision has been made, the hearing must resume with all parties present, except witnesses.
• During the continuation, the decision of the chairperson will be communicated. If the accused is found not guilty, it will mean the end of proceedings. If the accused is found guilty, aggravating and mitigating circumstances will be heard.
• Aggravating circumstances include evidence of previous transgressions of a similar nature, including relevant and valid warnings.
• Mitigation will be allowed on issues such as length of service, disciplinary record, family responsibilities, etc.
• The proceedings will again adjourn for the chairperson to consider these aggravating and mitigating factors.
• After all relevant mitigating and aggravating circumstances have been considered, an appropriate sanction will be given to all relevant parties – if possible, on the same day.
• This must be done in writing and handed to the accused.
• The accused must be reminded of his/her right to refer the matter to the CCMA within 30 days.

Important Aspects Regarding The Chairperson’s Actions

The hearing must be completed within a reasonable time without undue postponements. Lengthy delays may result in prejudicing the fairness of the procedure.

The chairperson must be neutral and not involved in the incident.

The chairperson must make his own notes to help him in reaching a fair and valid decision, even if a person is appointed to take minutes.

The person taking minutes must keep up with the hearing. If not, the chairperson must order a slower rate of talking.

If the hearing gets out of control the, i.e. persons are emotional or due to unacceptable conduct, the chairperson must adjourn for as long as is needed to cool the emotions.

The chairperson doesn’t need to give an outcome on the same day of the proceedings, if need be, as long as the outcome is given within a reasonable time.

The penalty must always fit the offence. Shocking or clearly-unjustified penalties must be avoided.

The decision must be reached after the hearing and not before.

All documentation and recordings must be kept together and confidential for internal appeal and possible CCMA or labour court action that might follow.

The chairperson and initiator may not be the same person.

During the hearing, only relevant facts may be submitted. Allegations not directly connected to the incident must be prohibited.

The hearing should be conducted in a closed room and secured from outside interference.

Interruptions and people moving in and out should not be allowed.

The chairperson may not also act as witness.

The chairperson should not have an interest in the outcome of the disciplinary hearing.

The chairperson should have no, or at little as possible, knowledge of the incident.

The chairperson should not have a history of antagonism or conflict with the employee concerned.

The manner and conduct of the chairperson should not indicate aggression or short-temperedness.

The chairperson should not consult another person as to the appropriate decision.