CHAIRPERSONS - OUTCOMES & DRAFTING DEFENSIBLE DISCIPLINARY FINDINGS

Written by Jana Ferreira

Imagine spending days dealing with a serious misconduct case, gathering evidence, suspending an employee, following every internal step, only to have an arbitrator set aside the dismissal because the charge sheet said “theft” when it should have said “unauthorised removal of company property.” Or because the chairperson made a recommendation without explaining how they weighed the evidence. These are not hypothetical disasters. They happen every day at the CCMA and Bargaining Councils across South Africa.

This article walks you, the employer, through what a defensible disciplinary enquiry actually looks like, from the very first word on the charge sheet to the last word in the written recommendation.

It All Begins With a Charge, and the Charge Matters More Than You Think

Think of the charge on the notification of a disciplinary enquiry as the foundation of a building. Everything that follows, the hearing, the evidence, the recommendation, must rest squarely on that foundation.

If the foundation is cracked, the whole structure is at risk.

The Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act) requires that an employee be informed of the allegations against them in advance of the hearing. This is not a formality. It is a constitutional imperative rooted in the right to just administrative action and the right to be heard.

In Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others [2006] 27 ILJ 1644 (LC), the Labour Court confirmed that procedural fairness requires that the employee know what they are accused of with sufficient particularity to prepare a meaningful response. A charge that merely says “misconduct” or “insubordination” without particulars is a procedural landmine.

A well-drafted charge should answer the following five questions:

• Who is alleged to have done something?

• What did they allegedly do (the act or omission)?

• When did it occur?

• Where did it occur?

• Which rule, policy, or standard does it contravene?

The Parties to a Disciplinary Enquiry: Know Who Is in the Room and Why?

A disciplinary enquiry is not a criminal trial, but it is a structured process with defined roles for each participant. When those roles are blurred or misunderstood, the process unravels. Below is who should be in the room, and what each party is expected to do.

PARTY	ROLE	RESPONSIBILITIES
The Employer	Initiating Party	Responsible for instituting proceedings, issuing the notice of the disciplinary enquiry, and ensuring the process is fair. Does not present evidence directly; this is done through the employer’s representative.
Employer’s Representative	"Prosecutor"	Leads evidence, calls witnesses, cross-examines the employee’s witnesses, and makes closing arguments. Should be familiar with the policy allegedly contravened and the evidence available. Must not be the same person as the chairperson.
Witnesses	Evidence Providers	Called by either side to provide factual testimony. Must testify only on what they personally observed or know. Hearsay testimony carries diminished weight. Credibility is central.
The Employee	Respondent	Has the right to know the charges in advance, attend the hearing, hear the evidence against them, present a defence, call witnesses, and be assisted. Cannot be found guilty in absentia without good cause and proper prior notice.
Employee’s Representative	Support Role	A fellow employee or shop steward (not a legal practitioner, unless agreed by both parties). Assists the employee, may cross-examine witnesses, and present mitigation. The employee remains the respondent; the representative’s role is supportive, not adversarial.
The Chairperson	Decision-Maker	Must be independent, impartial, and fair. Manages proceedings, rules on procedural objections, evaluates evidence, and issues a written recommendation with reasons. The most critical role in the room.

The Chairperson’s Burden, Running a Fair Process and Evaluating Evidence

If the charge is the foundation, the chairperson is the architect of the process. They do not build walls for either side; they ensure that the structure is sound, that each party has had a full and fair opportunity to present their case, and that the decision reached is rationally connected to the evidence heard.

The Chairperson’s responsibilities span three phases:

Phase 1: Before the Hearing

1. Confirm that the notification was properly served and that the employee had adequate time to prepare.

2. Confirm the employee understands their rights, including the right to representation and the right to call witnesses.

3. Obtain copies of all relevant documents: the charge sheet, any investigation report, the relevant policies, and any witness statements to be relied upon.

4. Ensure there is no conflict of interest. If the chairperson was involved in the investigation or is a direct supervisor of the employee, recuse and appoint an alternative.

Phase 2: During the Hearing

5. Open by introducing all parties, explaining the process, confirming the charges are understood, and inviting a plea.

6. A plea of “guilty” should not automatically end matters. Satisfy yourself that the employee understands the charge and its potential consequences before accepting the plea and proceeding to sanction.

7. Allow each side to lead evidence in chief and cross-examine opposing witnesses. Document testimony carefully by taking notes or appointing a designated note-taker.

8. The chairperson may ask clarifying questions but must not become an advocate for either party.

9. Admissibility of evidence is guided by relevance and reliability, not the strict rules of court procedure. However, hearsay must be identified and its weight noted.

10. Rule on any procedural challenges on the record and with brief reasons.

Phase 3: After Evidence Closing Arguments and the Recommendation

11. Allow both sides to make closing submissions on the evidence. These may be oral or, in complex matters, written. Each side argues why the evidence supports their version and what sanction is appropriate.

12. Withdraw to deliberate. The chairperson must weigh all evidence before making any recommendation.

13. Issue the written recommendation. This is the chairperson’s most important contribution, and the document that will be scrutinised if the matter proceeds to arbitration.

Guilty or Not Guilty: Understanding the Balance of Probabilities

South African labour law does not require proof of misconduct beyond a reasonable doubt, that is, the criminal standard. In disciplinary proceedings, the standard of proof is the balance of probabilities: was it more probable than not that the employee committed the act alleged?

This distinction is not merely academic. It means that a chairperson can find an employee guilty of dishonesty even in the absence of a confession or eyewitness testimony, provided that the totality of the evidence makes the employee’s guilt more likely than their innocence.

The chairperson must evaluate evidence by asking, whose version is more probable? This requires a credibility assessment of all witnesses, their demeanour, consistency, corroboration by other evidence, and whether their account is inherently plausible.

The Labour Appeal Court in SA Breweries (Pty) Ltd v Jacobs & Others [2016] 37 ILJ 1137 (LAC) confirmed that a chairperson’s recommendation on credibility, made after observing witnesses, will generally be afforded significant weight, provided the chairperson articulated their reasoning.

Critically, the chairperson must deal with both versions. A recommendation that merely states “I find the employer’s version more credible” without engaging with why the employee’s version is rejected is legally thin and vulnerable to review.

Types of Evidence the Chairperson Must Weigh

Direct evidence: Eyewitness testimony, CCTV footage, and access logs. Carries the highest weight when reliable and corroborated.

Circumstantial evidence: Evidence from which guilt can be inferred. Admissible and frequently determinative, if the inference of guilt is the most probable inference available.

Documentary evidence: Policies, emails, system records, timesheets, audit trails. Must be authenticated,  ideally by the person who created or maintains the records.

Hearsay evidence: What one person says another person told them. Technically inadmissible unless agreed or within recognised exceptions, but chairpersons may admit it with reduced weight. Must be noted explicitly.

The employee’s own testimony: An employee who testifies inconsistently, contradicts prior admissions, or fails to explain incriminating circumstances may have guilt inferred from those contradictions.

Writing a Defensible Recommendation: The Document That Will Be Scrutinised

If your disciplinary process is ever challenged at the CCMA/Bargaining Council or Labour Court, the chairperson’s written recommendation is the document that will be scrutinised most carefully. It is your primary defence. A well-written recommendation does not just reach a conclusion; it shows the pathway to that conclusion.

The recommendation should be structured to address both substantive fairness (was the employee guilty, and was the sanction appropriate?) and procedural fairness (was the process fair?).

What must a Defensible Recommendation Must Contain

✓	A credibility assessment — who the chairperson believes and, critically, why. This must address inconsistencies, corroboration, and demeanour of witnesses.
✓	Application of the balance of probabilities — an explicit statement that the standard has been applied and why the evidence crosses (or does not cross) that threshold.
✓	If guilty, the recommended sanction and the factors considered in both mitigation (length of service, clean disciplinary record, remorse, personal circumstances) and aggravation (severity of misconduct, impact on trust, prior warnings).
✓	The consistency principle — is the recommended sanction consistent with how similar misconduct has been treated previously? (See Telkom SA Ltd v Motsa & Another [2016] 37 ILJ 1236 (LAC).)

One of the most common errors employers make is issuing a recommendation that consists of a single paragraph or a pre-printed form with boxes ticked. Arbitrators have repeatedly overturned dismissals not because the employee was innocent, but because the employer could not demonstrate that the decision was reasoned.

The Constitutional Court in Sidumo & Another v Rustenburg Platinum Mines Ltd & Others [2007] 28 ILJ 2405 (CC) made clear that the standard of fairness is not a tick-box exercise but a substantive one. The question is always whether a reasonable decision-maker could have reached the same outcome.

Substantive Fairness, Sanction & the Employment Relationship

Even where the chairperson finds an employee guilty of misconduct on a balance of probabilities, the decision to dismiss must itself be substantively fair. Item 8 of the Code of Good Practice: Dismissal asks whether dismissal was an appropriate sanction given the nature of the offence, the circumstances of the employee, and the employer’s own conduct.

Dismissal is a last resort, except in cases of conduct so serious that it strikes at the root of the employment relationship.

Examples of conduct that typically justify dismissal on a first offence include, but are not limited to:

• Serious dishonesty (fraud, theft, falsifying records)

• Gross insubordination or wilful defiance of lawful instructions

• Deliberate assault on a fellow employee or member of management

• Conduct that endangers the safety of others

• Serious breach of confidentiality

The last-mentioned categories share a common thread: the employer can no longer reasonably be expected to trust or retain the employee. Where conduct is serious but not at that threshold, progressive discipline remains the expected approach. Dismissing an employee for a first offence of mild misconduct, even if technically “proven”, will likely be found substantively unfair, regardless of the quality of the procedural process. Both legs of fairness must stand.

Chairperson’s Recommendation and Employer’s Decision

The chairperson of a disciplinary enquiry shall, after considering all evidence and submissions, issue a written recommendation regarding the appropriate sanction.

Such a recommendation is advisory in nature and does not constitute a binding order. The final decision rests with the employer.

The employer may:

• Accept the recommendation;

• Impose a lesser sanction;

• In limited circumstances, impose a more severe sanction; or

• Refer the matter back for reconsideration.

Any departure from the chairperson’s recommendation must be rational, justifiable, and supported by written reasons.

Where the chairperson recommends dismissal, and the employer elects not to enforce dismissal, the employer must record the reasons for deviation and ensure consistency with disciplinary precedent and fairness principles.

Failure to provide documented reasons for departing from the recommendation may expose the employer to findings of procedural or substantive unfairness in subsequent dispute resolution forums.

The Enquiry Is Not the End, It Is the Evidence

Every disciplinary enquiry your establishment conducts is, potentially, the first chapter of a story that may be told at a CCMA/Bargaining Council hearing or in the Labour Court. The quality of that chapter determines how the rest of the story unfolds.

A well-drafted charge, clearly defined roles, an impartial chairperson, evidence evaluation, and a reasoned written recommendation are not luxuries; they are the tools that protect your business, your people, and the integrity of your employment relationships.

Discipline, when applied fairly and consistently, is not just a legal obligation. It is a signal to your entire workforce that your workplace has standards, that those standards apply equally, and that accountability is taken seriously. That signal has a value far beyond any single disciplinary case.