“Nemo Iudex in Causa Sua” – A decision-maker must be impartial and have no interest in the case.[1]
A chairperson must therefore ensure that he or she is impartial when conducting a disciplinary hearing. The chairperson must weigh all the evidence for and against the employee and then make an informed and well thought out decision.[2] This requires that the chairperson must be impartial in the facts of the matter and that there must be no grounds to suspect that the decision of the chairperson might be influenced by irrelevant or unrelated factors.[3]
The following circumstances may result in the biases of a chairperson:
- The chairperson was involved in the events that resulted in the disciplinary hearing;[4]
- The chairperson was involved in the entrapment of the employee;[5]
- The chairperson has a strong suspicion that the employee is guilty of the offence he/she is charged with;[6]
- The chairperson acted as the prosecutor, witness and judge in the disciplinary hearing;[7]
- Should there be excessive discussions between the chairperson and the initiator and or witnesses in the absence of the employee.[8]
A chairperson is allowed to probe statements made by witnesses in order to pursue a line of enquiry in an attempt to find the underlying cause of the relevant factual issues. Should the chairperson be of the view that additional evidence will assist in the investigation, the chairperson can take steps to get that information.[9]
If an employee has any reasons to suspect that a chairperson is bias, the employee can apply that the chairperson recuse him- or herself. The chairperson must consider this application for recusal; he is ,however, not obligated to grant it. If an employee alleges that a chairperson is bias, that employee must be able to prove the biases of that chairperson. Should the employee fail to prove that a chairperson is bias, it will not warrant the recusal of the chairperson.
An effective way to ensure that a chairperson is impartial is to appoint an outsider to conduct disciplinary hearings.[10] The employee is not entitled to have a say in the choice of a chairperson, this right to appoint a chairperson resides in the employer.[11] A company can therefore appoint a third party to conduct the disciplinary hearing on their behalf.
Contact your nearest SEESA office for labour assistance, alternatively, leave your contact details on our website for a legal advisor to contact you.
About The Author:
Justin
Blignaut is a Labour and Consumer Protection & POPI Legal advisor at SEESA
Klerksdorp. He obtained his B.Com Law Degree in 2013 and his LLB Degree in 2015
from the North-West University Potchefstroom.[LDB1]
[1] P Hlongwane The Nemo Iudex in Causa Sua and Audi Alteram Partem: Lessons from State of Capture Report for Public Sector Officials 136
[2] Grogan Workplace Law 13th Ed 232
[3] Grogan Workplace Law 13th Ed 232
[4] CCAWUSA v Rondalia Vakansie-Oorde t/a Buffelspoort Vakansie-Oord (1988) 9 ILJ 871 (IC).
[5] Townsend v Roche Products (1994) 15 ILJ 886 (IC).
[6] Townsend v Roche Products (1994) 15 ILJ 886 (IC).
[7] Townsend v Roche Products (1994) 15 ILJ 886 (IC).
[8] Ramchabi and Bureau Veritas (2014) 35 ILJ 2900 (CCMA).
[9] Kelly Group v Khanyile (2013) 34 ILJ 2035 (LC)
[10] Grogan Workplace Law 13th Ed 233
[11] Moodley v Knysna Municipality (2007) 28 ILJ 1715 (C).