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CASE LAW - PROCEDURAL FAIRNESS


Procedural fairness refers to the process an employer must follow when considering disciplinary action or dismissal.


Key elements include:


1. Informing the Employee:

Clearly communicate allegations in a manner the employee can understand.

2. Preparation Time:

Allow the employee reasonable time to prepare a response to the allegations.

3. Opportunity to Respond:

Provide the employee with an opportunity to state their case during the proceedings.

4. Representation:

Allow the employee to be assisted by a shop steward or another employee during the proceedings.

5. Decision Notification:

Inform the employee of the decision regarding disciplinary action in writing and in a clear manner.

6. Reasons for Dismissal:

Provide clear reasons for dismissing the employee.

7. Record-Keeping:

Maintain records of disciplinary actions, including the nature of misconduct, actions taken, and reasons for the actions.


Substantive Fairness


Substantive fairness relates to the reasons for dismissal:

1. Misconduct:

Ensure that the dismissal is justified by proving that a fair procedure was followed and that the employee is guilty of misconduct.

2. Incapacity (Poor Performance):

Determine if the employee's performance meets reasonable standards, considering factors like awareness of standards, consistency of application, and opportunities for improvement.

3. Incapacity (Ill Health):

Assess whether the employee's health allows them to perform their job, considering modifications or alternative work options.

4. Operational Requirements (Retrenchments):

Follow the legal requirements under the Labour Relations Act (LRA), ensuring valid reasons for retrenchment, consultations with affected employees, and providing evidence to justify the decisions.


Chairperson's Role in Disciplinary Hearings


The chairperson of a disciplinary hearing plays a crucial role in ensuring fairness:

1. Fair Procedure:

Establish that a fair procedure has been followed before considering guilt or innocence.

 2. Guilt Determination:

Based on the evidence presented, decide on guilt or innocence using the balance of probability.

 3. Sanction Decision:

If guilty, determine an appropriate sanction considering mitigating and aggravating circumstances.

 4. Mitigating Factors:

Consider factors such as the employee's length of service, previous record, personal circumstances, and remorse.

 5. Decision Communication:

Communicate the decision and sanction to the employee in writing, along with the right to appeal.


In the instance where unfair dismissal has taken place, section 193 of the Labour Relations Act 66 of 1995 sets out the remedies that the employee can revert to 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.”


The employee has the option to approach The Commission for Conciliation, Mediation, and Arbitration (CCMA) if he/she is dissatisfied with the manner in which the disciplinary inquiry has taken place or if he/she is of the opinion that his/her dismissal was unfair.



 

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