The Most Dangerous Words in a Hearing — “We All Know What Happened”

There is a phrase that surfaces surprisingly often in disciplinary hearings: “We all know what happened.” From a chairperson’s perspective, this is a red flag.

Assumption vs Evidence

Disciplinary hearings are not built on assumptions — they are built on evidence.

What may seem obvious to management is not always supported by:

• Witness testimony
• Documentary proof
• Reliable, tested evidence

When decisions are based on what is “generally known” rather than what is proven, they become vulnerable.

The Chairperson’s Responsibility

A Chairperson must remain independent and objective.

This means:

• Ignoring preconceived narratives
• Evaluating only the evidence presented
• Ensuring that conclusions are supported by facts

Even where misconduct appears obvious, the process must still substantiate it.

Filling in the Gaps — A Costly Mistake

One of the most subtle dangers is when Chairpersons begin to “fill in the gaps” themselves.

For example:

• Assuming intent without evidence
• Drawing conclusions not supported by testimony
• Relying on external knowledge not introduced in the hearing

This undermines the fairness of the process.

The Arbitration Reality

At arbitration, the question will not be: “What did the employer believe happened?”

It will be: “What did the employer prove?”

This distinction is critical.

Our View: Discipline Must Be Proven, Not Presumed

Employers often operate in environments where facts feel obvious and uncontested, but disciplinary hearings require a different standard:

• Evidence must be presented
• Evidence must be tested
• Findings must be based on that evidence

Anything less creates risk.

A Practical Takeaway

Chairpersons should constantly ask themselves: “If I remove assumptions, what evidence remains?”

If the answer is “not enough”, the outcome may not withstand scrutiny at the CCMA later.

Final Thought

The integrity of a disciplinary process lies in its objectivity. The moment a decision is influenced by assumption rather than evidence, integrity is compromised, and in labour law, that is often where cases begin to unravel.

Should you wish for us to help with the preparation of the Disciplinary Hearing or anything else relating to labour and employment law, please do not hesitate to contact us.

Off the Desk of

Gerhard Kotze’

Managing Member