When deciding on a disciplinary sanction, employers should demonstrate substantive fairness. Those who make the decision, including whether they terminate the employment relationship, should consider whether there are objectively verifiable facts justifying the sentence and whether the “sentence corresponds to the crime”. Material equity means that there is a fair, just and equitable reason for an employer to dismiss the employee. This is a subjective criterion. The guidelines in point 7 of the Code of Conduct aim to establish substantial fairness and, as regards Annex 8, appropriate procedures must be followed. Procedural fairness refers to natural justice and the process an employer follows to terminate an employee`s employment. We discussed procedural fairness in our previous article Fundamentals of Labour Law – What is “Procedural Fairness”? In this assessment of just cause for dismissal, substantive fairness is included in the wrongful dismissal equation. Such behavior on the part of a president is an absolute disgrace, totally unacceptable, and it is the president who should be removed. Below is a brief summary of the procedural and substantive fairness of misconduct, incapacity for work and forced dismissal.
This is not meant to be exhaustive or complete – employers must nevertheless adhere to what is written in the other modules. Employers are advised to consider aggravating and mitigating circumstances before deciding to recommend dismissal as an appropriate sanction. In addition, the employer must prove that the relationship of trust between the parties has irreparably deteriorated or that the employee has made the maintenance of the employment unreasonable. Employers should also remember that there are three areas of fairness that they must demonstrate to arbitrators; Procedural fairness, substantive fairness – guilt, substantial fairness – relevance of the sanction. If you need help with a labour law issue and legal requirements, or if you or your company are in the process of dismissing an employee for misconduct and you do not know how the procedure should proceed, please contact our offices for advice to ensure that the right mechanisms are in place in accordance with the Labour Relations Act. In NEHAWU obo Motsoagae / SARS (2010) 19 CCMA 7.1.6, the Commissioner pointed out that “the idea that it is not necessary for an employer to call the person who made the final decision to dismiss as a witness or to provide evidence of the dismissal procedure cannot therefore be supported. The arbitrator clearly does not hold a de novo hearing in the strict sense of the word and is responsible for assessing “whether what the employer did was fair”. The onus is on the employer to prove the fairness of a dismissal and it follows that it is up to the employer to provide the Commissioner with evidence to properly assess the fairness of his or her actions. “We hope that the above information will help you ensure that the principle of procedural and substantive fairness in workplace discipline is respected. Even if there are valid objective grounds for dismissal, the employer must follow a fair procedure before dismissing the employee.
The fairness of the procedure can indeed be considered as the “right” of the employee in relation to the actual procedure to be followed during the disciplinary or dismissal process. There is no definition of the word “unjust” in the above-mentioned act, so it is necessary to review previous cases and determine the model of decisions made by the courts. However, this does not mean that a dismissal for misconduct, incompetence or operational requirements is automatically considered fair by the CCMA if the reasonableness of the dismissal is challenged. When making a dismissal under one of the preceding headings, it should also be borne in mind that, before imposing a sanction of dismissal, the president of the disciplinary hearing must establish (ensure) that a fair trial has been respected. The second part, substantive fairness, deals with the objective fairness of the sanction imposed in the context of disciplinary measures. The legal definition of abusive means a very particular meaning for labor lawyers, which is very different from the ordinary dictionary or social use of the word. It can be assumed that the nature of the word “unfair” in labour law is somewhat subjective, which may well have been the intention of Parliament. Of course, each individual circumstance has its own facts and merits that can be considered unfair, and a catch-all definition would therefore limit the ability and discretion of a chair, commissioner or arbitrator to make a fair and just decision or decision. An objective definition of the word unjust would create a rigid and inflexible circumstance, since attention must be paid to the facts and particularities of the present case.
Procedural fairness refers to the procedures followed to notify the employee of the disciplinary hearing and the procedures followed at the hearing itself. Most employers have no problem in this regard, but usually fail miserably when it comes to content fairness. The reason for this is that real fairness can be divided into two elements, namely; This means that the employer followed a fair and due process before dismissing the employee, even if the dismissal is unjustified on the merits. Dismissal should not only take place with just cause, but also in a fair procedure. Procedural fairness refers to a disciplinary investigation that must be conducted to give the employee an opportunity to defend himself. This requirement stems from the adversarial rule, according to which each party should have the opportunity to express its point of view before a decision is made. The fairness requirements are set out in Schedule 8 of the Industrial Relations Act (LRA) and include the following: The “fairness” of a termination is decided in two ways: “It remains part of our right that it is primarily the employer`s responsibility to determine the standard of conduct to be observed by its employees and to determine the sanction with which non-compliance with the standard is treated. Interference is justified only in cases of unreasonableness and unfairness. However, the arbitrator`s decision on the fairness or unfairness of the employer`s decision may not be made by reference to the evidence available to the employer at the time of its decision, but on the basis of all the evidence available to the arbitrator. In this respect, the procedure is a de novo hearing. The following fair trial requirements must be met: The provisions of the Industrial Relations Act as well as the Code of Conduct within the meaning of the Industrial Relations Act must be taken into account in determining whether the dismissal is fair, just and equitable.
Procedural fairness and substantive fairness are the two springboards upon which these disciplinary investigations are based. The principle of fairness is the cornerstone of our labour law and, therefore, of discipline in the workplace. The Industrial Relations Act 1995 enacted the Act by requiring employers to exercise procedural and substantive fairness when disciplining or dismissing employees.