Leading through conflict means believing in the possibility of what does not yet exist. It requires focusing on the luminous opportunity that lies at the end of the tunnel of obstacles.
Mark Gerzon
Introduction
A skilled and knowledgeable chairperson sets an inquiry of any nature alight with direction, opportunity and potential. We see this in so many of our local and global political and other commissions or public hearings. They safeguard the involved interests, they air the apparent and hidden conflict causes and symptoms, and they create a space where people communicate effectively.
In doing so, they optimize results and reduce or remove risks to a variety of interests, such as legal or brand damage, internal workplace conflict dynamics or productivity or performance obstacles. Problematic relationships, seemingly incompatible interests or outcomes, and nuanced achievements are all managed carefully, and with accountability as an added attraction.
In this series we will take a comprehensive look at the art, and the science, of the chairing of disciplinary inquiries. Hopefully, when we are done, you will relinquish the idea so prevalent in South African workplaces, that the disciplinary chair is simply there to comply with a vaguely understood minimum set of requirements, in a process that is often begrudgingly approached with a gritting of teeth, and viewed as an inevitable workplace burden, something to be budgeted for, gotten rid of as quickly and as cheaply as possible, and to be avoided as far as possible.
I have been doing these specialized processes for more than thirty years, and I hope to share some of that experience, as well as modern workplace conflict best practices with you, and to hand you this indispensable, measurable modern management tool to apply to your own business.
Why upgrading is necessary
In the period April 2024 to March 2025 a total of nearly 200 000 case referrals were brought to the CCMA. That is not counting similar applications to Bargaining Councils and other dispute resolution forums. The trend is sharply upward.
The CCMA process is, in line with global best practices, a streamlined one, making access to all a priority. Applicants are assisted with the framing, completion and submission of their claims. In an economy where work has become a rare luxury for the majority, a type of claims gamble has become a reality, where all cases, regardless of the merits, are given their proverbial day in court.
From the employer’s perspective, the situation is not all that simple. Our employment laws and supporting frameworks, especially around dispute resolution, is often extremely nuanced and sophisticated, and our case law and the application thereof to practical everyday operational realities can be a daunting task.
Small errors of judgment, procedural missteps or even inconsistencies can have expensive, harmful, even commercially existential consequences for careers and for the business itself. Importantly, and not always understood in time, the decisions made at the internal inquiry casts in stone the facts, merits, procedure and sanction now to be judged by the later tribunal. Oversights and mistakes made in evidence, definitions, arguments, procedures, sanctions and so on can, with precious few exceptions, not be cured later on at the tribunal.
And yet, we do not see this complexity, precision and importance reflected in the majority of workplace disciplinary inquiries. Evidence leaders are often not properly trained and equipped, notices and other documentation are cobbled together from outdated precedent or artificial intelligence templates, and chairpersons are often completely out of their depth with the more complex inquiries, whether they are sourced internally or appointed from outside the business. Experience, often simply in the sense of having been around for long enough, is often mistaken for actual current expertise equal to the task at hand.
The entire disciplinary process, especially the inquiry itself, is nearly as par for the course, approached by senior management as an HR function, to be run by busy HR generalists or minimum-rate outside consultants, a resented process to be swept away as soon as possible. In the process, the managerial responsibility is breached, more often than not without anyone noticing it. The opportunities at avoiding, minimizing or efficiently resolving the entire workplace conflict, with its direct and indirect risks and opportunities, are all tied up in a rushed, poorly understood internal process. Done this way, because that is how it has always been done, and there is no real alternative. Or so we are told.
It is at this dangerous moment for the business that the decision of a suitable disciplinary chairperson becomes a crucial, important moment to return control over these risks to senior management.
Outsourcing vs internal capacity
The question whether to use internal personnel or appoint an outside chairperson is a strategically important one, and deserves a brief discussion. The question is often disposed of by questions of costs, confidentiality and competency carrying the day. The implied dichotomy is unnecessary. With very little time spent on the topic, senior management should have a considered sense, or an actual policy, of what the criteria can and should be in these appointments.
My own recommendation to corporate clients is to have a certain level of inquiry chaired by internal, trained, personnel, and the rarer instances of specifically defined (by complexity, risk, monetary value and so on) other inquiries chaired by external chairpersons.
Considerations of costs can be effectively dealt with by an assessment of the risk and results under consideration, and there are various refined solutions available in this category. I have fixed retainer agreements with most of my corporate clients, which negates the issue to a large extent.
Considerations of specific expertise need also not derail efficiency or risk, as a competent chairperson will suggest, and implement, the appointment of one or more assessors as panel members, should matters of specific industry expertise be anticipated.
Considerations of confidentiality are easily managed, if necessary by way of properly drawn NDAs or confidentiality agreements. The modern retainer agreement should in any event make adequate provision for this reality.
What is expected from the chairperson?
What should management be looking for in an external chairperson? We have addressed many of the most important and prevalent considerations in the previous section, but there are nevertheless a few additional points to consider. The chairperson should be seen as a company asset during the inquiry itself.
This statement is only seemingly controversial, until we realize that in executing a highly effective, professional mandate, following all conflict, legal, procedural and other relevant rules and best practices is in itself a business asset. In presenting and concluding a fair and compliant disciplinary inquiry the employer discharges its duties, and this is where an outstanding chairperson makes the difference.
More specifically, the chairperson should be more than conversant in modern workplace conflict principles and strategies. This is where conflict competency becomes a practical, measurable benefit for all concerned. While not a requirement, someone conversant and qualified in law, particularly employment law and the rules of evidence is arguably a significant advantage in most important or complex inquiries.
Good communication skills, in writing and verbally, an ability to command and enforce respect and dignity in the often confrontational world of disciplinary inquiries, the ability to stay calm under provocation and to continue to stay in control of the process are generally non-negotiable requirements.
A seemingly insignificant but very important example of updated workplace conflict competency that one should expect from any senior chairperson would be a high level of knowledge and experience in current online vs in-person arguments, the skilled management of online evidence and the impact this has on nonverbal evidence (see my article in the recommended reading section below).
A carefully and skilled written decision at the end of the inquiry is becoming a rare skill, and yet, this is the foundation from which so much follows in the event of the conflict continuing, whether internally or at an external tribunal. What type of impression will that written decision make at the CCMA or Bargaining Council, what type of impression will your chairperson make as a witness at that tribunal?
The disciplinary inquiry itself: an updated overview
1. General comments
Workplace conflict studies and best practices have made tremendous strides in recent years, especially in adopting a range of multi-disciplinary tactics and strategies grafted in from other disciplines, such as psychology, complexity studies, game theory, and a range of others. These tools have, insofar as they are not specifically incorporated into local HR practices, left the conventional HR department very far behind, both in capacity and problem-solving abilities.
It is inevitable that the standard South African workplace approach of an encoded disciplinary process, often very outdated and dragged in from somewhere else, would lead to outdated, potentially harmful and borderline negligent disciplinary inquiries. The bulk of workplace disciplinary inquiries are minimally compliant, if at all, and often simple studies in damage control, attended to by people with good intentions and bad skills preparation. The system is perpetuated simply because very few decision makers are aware of the better ways of doing disciplinary inquiries that are available.
2. Neutral or not?
Should an external disciplinary inquiry chairperson be neutral? The answer seems obvious, but that simplicity stems from a rather muddled approach to the question. What most people intend with the debate is an absence of bias. This speaks for itself, and the external chairperson should bring that impartiality to the table as an asset. But bias is not the same as neutrality in conflict management.
Neutrality can be experienced as indifference, and this case studies and research show us have a hidden but very detrimental effect on workplace morale, productivity and several conflict outcomes. Conflict expert Kenneth Cloke has a wonderful term that explains what the chairperson should be aiming at in this regard, and convey to the parties, and that word is omni-partiality. Not neutral, not indifferent – partial to the best result for all involved.
The best inquiry results flow from an engaged chairperson. This does not mean an interfering or overbearing presence in the hearing, but someone who cares about the best result for everyone, someone who does not use compromise as a lazy way out of difficult situations, someone that can skilfully guide and assist the parties in reaching clarity of evidence, thought and resolution.
3. Representation (union, legal etc.)
The chairperson should be able to effectively manage the inquiry in all its pre-, during and post-phases. This often, mostly during the inquiry itself, requires a firm, knowledgeable and experienced hand in maintaining the requisite control over the parties, which often includes their representatives. Workplace rivalries, union or legal representation often spill over into fractious inquiries, and the errors made there, often in the space of less than a minute, become expensive lessons in making the right decision of the presiding chairperson.
4. The value of legal knowledge
Our case law and procedural frameworks, including LRA practice guides and so on, insist rightly on a more informal, less litigious environment for disciplinary inquiries. This is how it should be, and that philosophy works well in many of the less important inquiries. But there is an intrinsic value in the chairperson either being legally qualified, or at least having an above-average knowledge of the legal practicalities that could be encountered in an inquiry. These are often spontaneous, spur-of-the-moment challenges, for example challenges or disputes about the admissibility of evidence, the relevance of a particular witness, the probative value of some or all of a particular line of evidence, credibility of witnesses and many other aspects. Overall, for more complex and important inquiries, a chairperson that is suitably legally qualified should be preferred.
Conclusion
I hope that our brief consideration of the position of a suitable chairperson has established the leadership responsibility of carefully selecting a suitable chairperson for complex or important disciplinary inquiries. This need not be an ongoing drain on management time, and I serve on a few chairperson panels where senior management spends quality time in appointing such a panel, and more junior personnel can then from there on make appointments from that panel. This also streamlines questions of availability, cost and so on. The potential for financial, productivity and brand damage in poorly managed disciplinary inquiries is enormous, as even a cursory glance at CCMA awards, Labour Court decisions or the popular media will attest to. This is one simple, efficient way of managing that risk.
* In the next article in this series we study some practical suggestions for evidence leaders and employees to present a clearer, more efficient case during disciplinary inquiries
Summary of main sources, references and suggested reading
1. My book Dangerous Magic: essays on South African conflict management contains several chapters and sections dealing with, or relevant to workplace conflict and inquiries (available from Amazon or Paradigm Media)
2. A few wider ideas about the upgrading of disciplinary inquiries in general, my article at https://www.conflict-conversations.co.za/conversations/workplace-disciplinary-inquiries-necessary-upgrades
3. The importance of online conflict management and workplace impact, my article at https://www.conflict-conversations.co.za/conversations/online-dispute-resolution-odr-and-our-conflict-cultural-diversity
4. For articles dealing with the conflict strategies and tactics discussed, see our blog index at Conflict Conversations
(Andre Vlok can be contacted at andre@conflict1.co.za for any further information.)
(c) Andre Vlok
June 2026
* Author’s note on the use of artificial intelligence in writing this article
I learned to draft, argue and write in the hard school of litigation. I enjoy and value the very human process of creating ideas, of testing my own knowledge and thoughts. It is a process that I need, for answering some of my professional and even personal questions, it is cathartic and inspiring. My work requires precision and accuracy, and I only trust myself to deliver on this demand at this level. Other than the most basic research assistance I do not use any AI in the creation of my written work, this article included. It is a matter of pride, of preference, and of mental health. Whether that is a wise choice, I will leave to the reader to decide.