I was posed a genuinely interesting question by a colleague last week. The scenario was as follows; if in a disciplinary hearing chairperson X, after delivering a verdict, becomes incapacitated, or even dies, prior to hearing mitigating and aggravating factors and selecting a sanction, can a new chairman (chairman Y) take over and address the question of sanction selection?
To begin with, it may not be too problematic to hear the case afresh if it is a relatively short matter with few complexities. But what if the verdict was the culmination of many days of evidence wherein the merits of the case are somewhat complex?
In such circumstances, the complete rehearing of the case could be unpalatable for either or both parties. This may be complicated by the challenge in recalling witnesses, especially if they are not employed by the employer. In addition, in the event of an external chairman, it is quite possible that chairman X was paid a handsome fee for his/her services, prior to their incapacitation. The notion of incurring a duplication of fees for an external chair may challenge the most liberal of employers.
So what does one do in these circumstances? At face value, there appears to be two distinct options. Either rehear the case afresh, or appoint a new chairman Y to complete the hearing from mitigation to sanction selection.
Rehearing the case has additional risks. What if chairman Y arrives at a different verdict to chairman X? Yes, the labour dispute resolution channels (CCMA etc) are available to bring the case to a head, but differing verdicts would none the less throw a spanner in the works in all likelihood, especially if chairman X found the employee not guilty and chairman Y found the employee guilty.
Would that entitle the employee to one more hearing (with chairman Z) to make it the best of three?(!)
After pontificating over this for some time, including mulling over it with two chums, a Senior CCMA Commissioner and a respected member of the Bar, we three wise men concluded that in the case of a chairman being required to abandon a lengthy case post guilty verdict and pre-sanction, there is no reason why a new chair cannot be appointed, with certain provisos.
To begin with, the new chairman (Y) should review the disciplinary hearing transcript to assess the merits of the original verdict. If s/he concludes that the guilty verdict seems unjust, the case should be reheard afresh.
If however the newly appointed chairman (Y) concurs with the original guilty verdict of chairman X, the original guilty verdict should be confirmed, and the new chairman (Y) should proceed to hear mitigating and aggravating factors as per normal and select an appropriate sanction in accordance with the normal sanction selection guidelines and principles.
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