The Labour Relations Act (LRA) together with common law gives employees several procedural rights in the context of a possible dismissal. Included amongst these is the right to an impartial presiding officer chairing the hearing.
There are number of factors that may suggest that the hearing chairperson could be biased. These include, amongst others, situations where the chairperson:
- Has previously had a clash with the accused employee.
- Has prior knowledge of the details of the case.
- Unreasonably turns down requests from the employee for representation, witnesses, an interpreter or other requirements.
- Makes a finding that is unsupported by the facts brought before the hearing.
What does not necessarily, on its own constitute bias is the relationship of the chairperson to the employer’s representative or refusal by the chairperson to allow legally impermissible evidence, to hear irrelevant testimony or to allow unjustified adjournments.
However, it is extremely difficult for a hearing chairperson to distinguish fairly between reasonably and unreasonably turning down the accused’s request for a witness, representative, adjournment or other requirement. The ability to make rulings in this regard that will stand up in court can only be acquired via substantial formal training and solid experience of the hearing chairperson.
In the case of Manyama vs Scaw Metals Chain Products (2011, 8 BALR 803) the arbitrator found that the chairperson of the disciplinary hearing had had prior knowledge of the incident and had therefore been biased. The employer was ordered to pay the employee R58000 in compensation.
In order to ensure that employers do not lose cases due to chairperson bias or alleged bias at disciplinary hearings employers must ensure that:
- Hearing chairpersons have no involvement in or knowledge of the case prior to the hearing.
- Presiding officers do not, during the hearing, behave in any way that could appear to be biased.
- Chairpersons are able to arrive at rulings, verdicts and penalty decisions in an unbiased manner.
- Hearing chairpersons have a solid understanding as to what constitutes apprehension of bias.
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