Employee dismissals in South Africa are governed by stringent labour laws designed to ensure fairness and protect the rights of both employers and employees. Procedural and substantive fairness are critical elements in this process. This guide delves into procedural fairness, offering insights into its application and significance in South African labour law.
Defining procedural fairness in labour law South Africa
Procedural fairness refers to the process followed when dismissing an employee, ensuring the dismissal is conducted lawfully and ethically. It requires adherence to a straightforward, transparent procedure that allows the employee to understand the allegations, present their case, and respond to evidence.
Example of procedural fairness in practice
An employer suspects an employee of theft. Procedural fairness requires the employer to:
- Notify the employee of the allegations in writing.
- Provide adequate notice of a disciplinary hearing.
- Allow the employee to present evidence and call witnesses.
- Ensure an impartial chairperson oversees the hearing.
By following these steps, the employer ensures a procedurally fair dismissal.
Defining substantive fairness in labour law South Africa
Substantive fairness focuses on the reason for the dismissal. It ensures the dismissal is based on valid, lawful grounds such as misconduct, incapacity, or operational requirements.
Key differences: Substantive vs procedural fairness
While procedural fairness relates to the process, substantive fairness examines whether the reason for dismissal is justified. For instance, dismissing an employee for absenteeism without evidence would lack substantive fairness, even if the correct procedure was followed.
Example of Substantive Fairness
An employee is dismissed for consistent underperformance. Substantive fairness requires proof of:
- Documented performance reviews.
- Efforts to assist the employee in improving.
- Valid reasons showing the employee failed to meet expectations despite support.
Why procedural fairness in dismissals is important
Procedural fairness is crucial for both legal and ethical reasons. Employers who fail to adhere to these standards risk:
- Reinstatement of the dismissed employee.
- Compensation claims from the employee.
- Damage to the organisation’s reputation.
Procedural fairness ensures that employees are treated with dignity and respect, fostering trust in the workplace and mitigating the risk of disputes and legal challenges for employers.
Requirements for a fair dismissal
Substantive and procedural requirements
A fair dismissal must meet both substantive and procedural requirements under South African labour law:
- Substantive fairness: The reason for dismissal must be valid and lawful.
- Procedural fairness: The process must be fair and transparent.
Procedural fairness in disciplinary hearings
To ensure fairness, disciplinary hearings must:
- Provide written notification of the hearing.
- Clearly state the allegations against the employee.
- Allow the employee to prepare and present their case.
- Include an impartial chairperson to oversee proceedings.
By meeting these criteria, employers can ensure compliance with labour laws and minimise the risk of disputes.
How SVN Attorneys Can Help
Adhering to procedural and substantive fairness is not just a legal obligation but also an ethical responsibility. Employers must ensure that every dismissal is handled carefully to avoid costly legal disputes.
SVN Attorneys offers expert guidance and support in:
- Drafting and reviewing disciplinary procedures.
- Conducting fair and impartial disciplinary hearings.
- Providing legal advice to ensure compliance with South African labour laws.
Contact SVN Attorneys today for professional assistance in navigating the complexities of procedural and substantive fairness. Protect your business and foster a fair workplace environment.