When a dispute arises between an employer and an employee that could lead to dismissal, South African law is clear: the process must be fair. This principle is rooted in Section 23 of the Constitution, which guarantees everyone the right to fair labour practices. The Labour Relations Act (LRA) 66 of 1995 gives effect to this right, establishing that any dismissal must be fair in two distinct ways: substantively and procedurally. Understanding these two pillars is essential for both employers and employees to navigate workplace discipline correctly, ensure justice, and avoid costly disputes at the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant Bargaining Councils.

What is Substantive Fairness? The “Why” of Dismissal

Substantive fairness deals with the reason for the dismissal. It requires that an employer has a just, valid, and equitable reason to terminate an employee’s contract. Without a fair reason, any dismissal will be considered unfair, regardless of the procedure followed. The LRA’s Code of Good Practice: Dismissal (Schedule 8) provides clear guidelines for what constitutes a fair reason for dismissal, which generally falls into three categories: misconduct, incapacity, or operational requirements.

Key Questions for Substantive Fairness

To determine if a dismissal is substantively fair, an employer must be able to answer “yes” to the following questions, especially in cases of misconduct:

  • Was a workplace rule broken? The employer must prove that a clear rule or standard regulating conduct in the workplace was contravened by the employee.
  • Was the rule valid and reasonable? The rule itself must be legitimate, lawful, and reasonably related to the business’s operations.
  • Was the employee aware of the rule? The employer must show that the employee knew the rule, or could reasonably be expected to have known it through induction, training, or company policies.
  • Has the rule been applied consistently? The employer must apply the rule consistently to all employees. Inconsistency, where employees who committed similar offences were treated differently, can render a dismissal unfair. This is known as the “parity principle”.
  • Is dismissal the appropriate sanction? Dismissal should be a last resort. The employer must consider if a less severe penalty, like a final written warning, would be more appropriate. This involves considering progressive discipline, the severity of the offence, and the employee’s disciplinary history.

The Employer’s Burden of Proof

In any disciplinary inquiry, the employer carries the burden of proof. They must provide sufficient evidence to prove the alleged misconduct on a “balance of probabilities”. This means they must show that it is more likely than not that the employee committed the misconduct. This evidence is crucial for a disciplinary inquiry to succeed and for the dismissal to be upheld if challenged.

What is Procedural Fairness? The “How” of Dismissal

Procedural fairness focuses on the process followed by the employer before making the decision to dismiss. The core principle, derived from the legal maxim audi alteram partem (“hear the other side”), is that every employee has the right to state their case and defend themselves against allegations. A dismissal for a perfectly valid reason can still be ruled procedurally unfair if the correct steps are not followed, potentially leading to a compensation order against the employer.

Steps for a Fair Disciplinary Procedure

Schedule 8 of the LRA outlines the requirements for a fair procedure. While it doesn’t always have to be a formal, court-like inquiry, it must include the following key steps to ensure fairness:

  1. Conduct an Investigation: The employer should investigate the allegations promptly to determine if there are sufficient grounds for a disciplinary hearing. This is a fact-finding mission, not a pre-judgment of guilt.
  2. Notify the Employee of the Allegations: The employee must be given formal, written notice of a disciplinary hearing. This notice must be in a language the employee understands and clearly detail the specific charges so they can prepare a defence. The notice should also state the employee’s rights, including the right to representation.
  3. Allow Reasonable Time to Prepare: The employee is entitled to a reasonable amount of time (typically at least 48 hours, but potentially longer for complex cases) to prepare their case. This includes being given access to relevant documents and evidence.
  4. Hold a Hearing: The employee has the right to be present at the hearing, which should be overseen by an impartial chairperson. The employee must be given the opportunity to state their case, present evidence, call witnesses, and cross-examine the employer’s witnesses.
  5. Right to Representation: The employee is entitled to be assisted at the hearing by a fellow employee or a trade union representative (shop steward). Legal representation is not an automatic right and is at the discretion of the chairperson.
  6. Consider Mitigating and Aggravating Circumstances: If the employee is found guilty of the misconduct, they must be given an opportunity to present mitigating factors (e.g., long service, clean record, personal circumstances) before a sanction is decided. The employer can also present aggravating circumstances (e.g., lack of remorse, severity of the impact on the business).
  7. Communicate the Decision: The chairperson of the hearing must communicate the final decision to the employee, preferably in writing. If the decision is dismissal, clear and substantiated reasons must be provided.
  8. Inform the Employee of Their Rights: Upon dismissal, the employee must be informed of their right to refer the matter to the relevant Bargaining Council or the CCMA within 30 days.

Remedies for Unfair Dismissal

If the Labour Court or a CCMA arbitrator finds that a dismissal was either substantively or procedurally unfair, Section 193 of the LRA provides for several remedies for the employee. The primary goal of these remedies is to place the employee in the position they would have been in had the unfair dismissal not occurred.

  • Reinstatement: This is the primary remedy. The employer is ordered to reinstate the employee in their job on the same terms and conditions as before, from a date not earlier than the date of dismissal. It is as if the dismissal never happened.
  • Re-employment: An alternative to reinstatement, where the employer is ordered to re-employ the employee, either in their previous role or in other reasonably suitable work. This may be on different terms and is effective from the date of the order.
  • Compensation: Where reinstatement or re-employment is not reasonably practicable, the employer may be ordered to pay financial compensation. For a standard unfair dismissal, this is capped at the equivalent of 12 months’ salary. For automatically unfair dismissals (e.g., discrimination, participation in a protected strike), the cap is 24 months’ salary.

Conclusion: Ensure Fairness and Compliance Through Proactive Measures

Navigating the requirements of substantive and procedural fairness is a non-negotiable aspect of labour relations in South Africa. Employers must ensure every disciplinary process is managed correctly, not just to avoid costly legal claims, but to foster a fair and respectful workplace. Employees who believe they have been unfairly dismissed have a clear right to challenge the decision at the CCMA.

Given the complexities involved, seeking expert legal advice is the most effective way to protect your rights and ensure a fair outcome, whether you are an employer initiating a disciplinary process or an employee facing one.