HIRING A CONSULTANT TO PRESIDE OVER A DISCIPLINARY HEARING

QUERY:

At a certain company, the director hired a consultant to preside over a disciplinary hearing. Is this proper? The company doesn’t have a company code, it uses SI 15 of 2006.

OPINION:

My problem with using a consultant to deal with disciplinary issues when using SI 15 of 2006 stems from the definition of the “disciplinary committee” and that of a “disciplinary authority” in terms of section 2 of the Statutory Instrument (SI).

Definitions provided for in the SI

A look at the definitions used in this statutory instrument will indicate that the person or persons who should preside over a disciplinary case should be from the same organisation. This must be someone who is part and parcel of the organisation.

Let’s have a look at the definition of a disciplinary committee as a starting point. Its states:

“disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employees’ representatives, to preside over and decide over disciplinary cases and/or worker grievances. (Own Emphasis)

The definition is straight forward, a committee must be made up of employer and employee representatives. A consultant in my view is neither of the two. It is submitted that the words “to preside over and decide over disciplinary cases and/or worker grievances” do indicate that such committee is not there to preside over a single case. It should be or it would have been established to deal with all cases that happen at such an establishment. I don’t think a consultant or even a committee hired to deal with one case would be within the definition of the SI.

With regards to a disciplinary authority the definition is precise:

“disciplinary authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace;

This authority must be someone or some committee “dealing with” matters in a works place. The words “dealing with” do not denote a single case. This would be someone or a committee specifically tasked with the business of dealing with such issues as a matter of course. Again, one consultant hired to deal with one case will not fall within the definition of authority as per the SI.

Intention of the legislature

It is my view that the intention of the legislature must have been to preclude anyone from outside an organisation from dealing with disciplinary cases. If the intention was to allow anyone outside an organisation the statutory instrument would have been more specific. This, in my view, confirmed by section 8 of the SI which section deals with internal appeals. The section says:

“Depending on the size and circumstances of an establishment or a workplace, an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employees or worker representatives, an Appeals Committee to preside over and decide on appeals.” (Own Emphasis)

An appeal should be handled by someone within an organisation. The legislature intended that the whole process be handled internally before being dealt with outside the organisation on appeal or review. It would be absurd to think that the SI allows an initial hearing to be handled by an outside person and whereas the appeal should be dealt with by an internal person.

Impartiality

 Besides the above, I believe that disciplinary cases require that someone who is not an interested party preside over them. Once someone hires a consultant, the inescapable feeling is that this consultant has been hired to dismiss an employee at all costs. Such a consultant will be paid by the employer. He or she becomes an interested party who is bound please his or her master.

At the end of the day, it all boils down to one legal principle, “Not only must Justice be done; it must also be seen to be done”

Conclusion

Once a consultant is hired to discipline or dismiss an employee, justice would have failed, and such proceedings will be a nullity.