Basic rules of substantive fairness

Workplace discipline is required to be applied in both a substantively and procedurally fair manner.

Put simply, disciplinary action must be applied for a fair reason and in accordance with a fair procedure.

Substantive fairness has a number of facets which have the potential to complicate the application of discipline, such as consistency and the appropriateness of the sanction selected, especially in dismissal cases on occasion.

Procedural fairness requirements are clearly and simply spelt out in schedule 8 of the Labour Relations Act (LRA).

Yes, many employers have crafted detailed disciplinary procedures and codes, but in the absence of company disciplinary procedures and codes, or those negotiated with a trade union in a collective agreement, one should look no further than schedule 8 of the LRA.

Procedural unfairness is all the more unpalatable when there is in fact a fair reason for dismissal, yet the dismissal is held to have been unfair on grounds that the employer’s pre-dismissal procedure was defective. This is entirely avoidable.

Schedule 8 of the LRA (Code of Good Practice: Dismissal) is clearly drafted, relatively short, and not especially difficult to comprehend and apply, thereby limiting procedural fairness-associated risk.

Remember, too, that employer decisions need not necessarily be perfect, but they have to be reasonable. It is even argued, in terms of a particular school of thought, that employers need do no more than comply with schedule 8 of the LRA, and dispense with internal disciplinary procedures and codes.

The schedule devotes four short paragraphs to the requirements for a “fair procedure”.

It stipulates that grounds for dismissal should be investigated and the investigation need not be a formal inquiry.

The employee should be notified of the allegations being made against them, given reasonable time to prepare a response, and be allowed an opportunity to state a case in response to the allegations.

The employee is entitled to representation by a colleague or shop steward, and the employer’s verdict should be communicated, preferably in writing.

The reason for dismissal should be provided by the employer, and the employee should be advised of their right to refer their dismissal to the CCMA within 30 days.

A complicated procedure it is not.

Two factors complicate the apparent simplicity of disciplinary procedures as outlined in the schedule.

First, discipline – and especially discipline which culminates in dismissal – is seldom imposed dispassionately.

Temperatures rise, offence is taken and blind retribution frequently becomes the goal.

This emotional state is hardly conducive to the careful contemplation of procedural obligations, and thoughtful consideration and selection of dismissal as a sanction; let’s not forget that dismissal is frequently referred to as the economic equivalent of the death penalty.

Second, the adjudication of unfair dismissal cases at arbitration hearings has not always acknowledged the simplicity of procedural fairness requirements of the schedule.

The new CCMA misconduct arbitration guidelines may help overcome this.

l Book for a Seta-accredited Conducting Disciplinary Hearings workshop (June 27 and 28) by calling 011 476 1620, e-mail admin@tonyhealy.co.za, or visit www.tonyhealy.co.za