Substantive Fairness and Procedural Fairness in South African Labour Law

South African Labour Law requires a disciplinary inquiry when there is a dispute between an employer and employee, and if the employer anticipates dismissing the employee, the employee’s position must be determined.

It is the employer’s responsibility to investigate misconduct and determine whether disciplinary action or dismissal is warranted.

According to the Labour Relations Act, the purpose of a disciplinary inquiry is to determine whether the dismissal of an employee, for misconduct, is fair and just.

In determining whether dismissal is just, equitable, and fair, it is important to consider the provisions of the Labour Relations Act as well as the Code of Good Practice issued under the Labour Relations Act.

Procedural and substantive fairness are the two steppingstones on which these disciplinary inquiries are based.

Two questions must be answered by any person chairing a disciplinary hearing:

1. Is the sanction substantively fair?
2. Was the hearing conducted in a procedurally fair manner?

Substantive Fairness:

When a lesser sanction is imposed, substantive fairness seldom arises. However, dismissal is frequently the sanction of choice in terms of substantive fairness.

As a part of determining whether the dismissal was substantively fair, the reason for it is considered and, if so, whether it was sufficient to justify it. To quote a familiar expression, does “punishment fit the crime”?

The person considering if a dismissal is fair, needs to consider the following:

1. Is dismissal the appropriate step to take against the employee rather than a less severe penalty for example, a verbal or written warning?
2. Does the employer have prima facie proof of the misconduct that had taken place?
3. If a rule of conduct has been broken, determine the following:
   a. Is there a rule that was broken?
   b. Is the rule valid, fair or reasonable?
   c. Has the employer been consistent in applying the rule?
   d. Is the rule consistently applied by employees?
   e. Does the employee have knowledge about the rule or can it be reasonably expected of the employee to know about the rule?
   f. Is dismissal appropriate for breaking the rule?
4. Employers must prove misconduct using a “balance of probabilities” test. In other words, there is a greater chance of the misconduct occurring than not occurring.

Procedural Fairness:

By following this procedure, the employer has followed fair and proper procedures before dismissing the employee, even if the dismissal is substantively unfair.

The dismissal should not only be based on a fair reason, but it should also be conducted in a fair manner.

The principle of procedural fairness refers to the requirement that a disciplinary investigation be held so that an employee can present his or her case

Procedural fairness requirements:

1. It stipulates those grounds for dismissal should be investigated and the investigation does not need to be a formal hearing.
2. The employee should be notified of the allegations being made against him/her, given reasonable time to prepare a response on the allegations.
3. The accused employee(s) should be allowed an opportunity to state his/her case in response to the allegations.
4. The employee is entitled to representation by a colleague or a representative of a union.
5. The employer’s ruling should be communicated, preferably in writing.
6. The reason for dismissal should be provided by the employer, and the employee has a right to refer the dismissal to the CCMA within 30 days after the ruling was made.

According to section 193 of the Labour Relations Act 66 of 1995, an employee who has been unfairly dismissed is entitled to recourse for assistance:

“(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may:

• Order the employer to reinstate the employee from any date not earlier than the date of dismissal;
• Order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
• Order the employer to pay compensation to the employee.”

In the event that the employee is dissatisfied with the outcome of a disciplinary inquiry or felt that he or she was unfairly dismissed, he or she has the option of contacting the Conciliation, Mediation and Arbitration Commission (CCMA).