What the law actually requires

The Code of Good Practice: Dismissal, in force since 4 September 2025, does not require a formal hearing at all. It requires that the employer investigate, notify the employee of the allegations in a form and language the employee understands, give the employee a reasonable opportunity to state a case with the help of a fellow employee or union representative, decide, and communicate the decision with reasons. Nowhere does it say the person deciding must be independent. What it does require is a decision that is fair, and fairness has two parts: the process must be fair, and the outcome must be justified on the evidence and the seriousness of the conduct.

The Labour Appeal Court confirmed in Universal Product Network v Mbatsana, decided on 31 March 2026, that procedural unfairness on its own does not turn a substantively fair dismissal into an unfair one; it sounds in compensation. That cuts both ways for employers. A defective process will cost money even when the dismissal was deserved, and a good process will not save a decision that the evidence did not support. The chairperson is the person who has to get both parts right.

When an internal chairperson is the wrong choice

When the chairperson has already formed a view: if the manager was involved in the investigation, spoke to witnesses, or has said in an email what should happen to the employee, the ruling is open to attack as predetermined.

When the employee is senior, or the allegation is serious: dismissals of managers, professionals, educators and long-serving staff are the ones that end up at the CCMA, and the chairperson's reasoning will be read line by line.

When the employee has a lawyer or a union official: an internal chair who has never run a contested hearing will be out of position within minutes, and every ruling on representation, postponement and admissibility becomes a ground of review.

When the business is small: in a business of five or ten people there is no one who is not connected to the matter. Independence is not a luxury there; it is the only way to get a hearing that looks fair from the outside.

When it is a school matter: where the employee is an educator, the hearing may lead to a SACE referral, a parent body that talks, and a board or governing body that is personally exposed if the process fails. Performance cases against teachers turn on classroom observation, results, pastoral and co-curricular duties and the school's own ethos, none of which a corporate chairperson has seen before.

Why schools in particular need the right chair

An independent school is not a business with a bell. It is usually a non-profit company, often paired with a trust, run by a board or council of volunteers, and held together by a value system that its parents chose it for. Its employees are educators whose competence is assessed in ways that have no corporate equivalent: lesson observation, subject and phase results, pastoral care, coaching and cultural duties, conduct in front of children, and the professional standards enforced by SACE.

A performance or misconduct hearing in that setting has to be run by someone who understands the assessment as an educator would, applies the law as an attorney must, and reads the governance as the board's adviser should. Chairpersons who cover one of those three are easy to find. The hearings that go wrong are usually chaired by one of them.

What an independent chairperson does

An independent chairperson is appointed by the employer, receives the charge sheet and the bundle, and runs the hearing from beginning to end: the preliminary points, the pleas, the evidence, cross-examination, mitigation and the written outcome. The chair does not investigate, does not draft the charges, and does not decide whether to dismiss until the evidence is in. An attorney in the chair brings something a manager cannot: familiarity with how a commissioner will later read the ruling.

The written outcome is your defence

A properly written outcome is not only the end of the hearing; it is the employer's defence if the dismissal is referred to the CCMA. The commissioner will ask whether the employee knew the case, had a fair chance to answer it, was heard by someone who had not prejudged it, and was dismissed for a reason the evidence supports and the seriousness justifies. An outcome that deals with each of those questions in order gives the employer's representative a document to hand up at conciliation and to build the arbitration case on, rather than a decision to be reconstructed from memory months later.

A defensible outcome contains: the charges as framed and any amendment allowed; every preliminary point and how it was decided; the evidence on each charge with findings on the disputed facts; the five questions the Code now asks (did the rule exist, did the employee know it, was it broken, has it been consistently applied, and, the question added in 2025, why does the rule matter in this workplace); whether the case is misconduct or incapacity, decided before sanction, since Propay v Stengel and Midas Group Komatipoort v NUMSA are clear that the two cannot be charged on the same facts; mitigation and aggravation expressly weighed; and the sanction, with reasons why a lesser sanction would not do.

Common mistakes that hand the employee the case

Charging incapacity as misconduct because it feels like fault. Refusing a short postponement to a first request and creating a review point for nothing. Allowing the initiator to speak to the chair outside the hearing. Letting the ruling say the employee is dismissed without a finding on each charge. Applying a zero-tolerance substance policy to an employee who used cannabis lawfully at home, which Enever v Barloworld Equipment has made automatically unfair unless actual impairment or an inherent requirement of the job is proved. Each of these is avoidable, and each one appears in CCMA awards every month.

The practical arrangement

Many of the employers and schools OptiHR works with, from five employees upward, do not wait for a hearing to find a chairperson. They hold a standing arrangement: a small monthly fee keeps a qualified chair available on short notice, hearings are charged at a half-day or full-day rate that includes the written outcome and travel within Gauteng, the employer receives a procedural fairness checklist and guideline covering the notice of hearing, changes to charges, postponements, representation and the rest of the process, and the hearing fees are credited against a full HR retainer if the employer takes one up within 60 days. It means the chair already knows the business, its code and its history before the first charge sheet is drafted.