The principle of fairness is the corner stone of our labour law and therefore, by inference, of workplace discipline. The Labour Relations Act, 1995, gives effect hereto by requiring from employers to demonstrate both procedural and substantive fairness when disciplining or dismissing employees.
These are the two stepping stones on which workplace discipline is based and the one without the other is not sufficient. Not only should the dismissal be made for a fair reason, but it should also be followed within a fair procedure.
Procedural fairness means exactly what it says, namely that that the employer has to follow a fair and proper procedure before disciplining or dismissing an employee. This requirement was derived from the “Rules of Natural Justice”, which consist of two principles, namely the audi alteram partem rule, which means “hear the other side” and is essentially the right to a fair hearing, and the nemo judex in causa sua rule, which means “no man is a judge in his own cause”, and is essentially a rule against bias.
To determine if disciplinary procedures, both formal and informal, were procedurally fair, the following will, inter alia, be considered:
- Did the investigation take place as soon as possible?
- Was the employee notified of the allegations, using a language that he/she can reasonably understand?
- Did the notice clearly set out the charges and the employee’s rights during the inquiry?
- Was the charges detailed enough for the employee to determine the charge/s against him/her?
- Was the employee given a reasonable time to prepare his/her defence?
- Was the employee present during the hearing, and given an opportunity to cross examine the employer’s witnesses and present his/her own case?
- If found guilty, was the employee given an opportunity to present mitigating circumstances before the sanction was given? and
- If the employee was dismissed, was he/she provided with reasons and reminded of his/her rights of appeal and to refer the matter to the CCMA?
Substantive fairness in short means that there must be a just, fair and equitable reason for an employer to discipline or dismiss an employee. This is a subjective test and, in order to determine if this rule has been complied with, the following will, inter alia, be considered:
- Does the employer have prima facie proof of the misconduct?
- If a rule of conduct has been broken, determine the following:
- Is the rule valid, fair or reasonable?
- Has the employer been consistent in applying the rule?
- Does the employee have knowledge about the rule?
- Is the sanction appropriate for breaking the rule?
- Did the employer provide sufficient proof of the employee’s guilt, based on the test of “balance of probabilities”? and
- Is the sanction appropriate, considering the facts and circumstance of the matter, rather than a less severe penalty?
To recap, it is a legal imperative that the employer act both procedurally and substantively fair during the whole disciplinary process, whether formal or informal, failing which he/she will leave the door open to the employee, either to take the matter on appeal, if applicable, or to refer a dispute based on either an unfair labour practice, or an unfair dismissal, as the case may be, to the CCMA.
We trust that the above information will assist you to ensure compliance with the principle of fairness, both procedurally and substantively, when dealing with workplace discipline.
Should you require any assistance please contact us at:
Office: 012 882 0976
Email: Christo@svninc.co.za
