- 11th Jun 2018
- Posted by: Barnard Inc
- Categories: Articles, Uncategorised
Substantive and Procedural Fairness
It is likely that every employer is required to take disciplinary action against an employee, at least at some stage. Such disciplinary action might lead to the termination of the employee’s service. It remains imperative to comply with the provisions as set out in the Labour relation Act to ensure that the dismissal is fair. In the previous article the requirements for a fair dismissal were briefly discussed, namely that it is to be effected in accordance with a fair procedure and for a fair reason.
This article aims at focusing on substantive and procedural fairness and the remedies for an unfair dismissal in relation to misconduct.
The most important principle set out in “Schedule 8 – The Code of Good Practice: Dismissal” is that both the employer and employee should treat one another with respect. Employers have the right to expect a certain standard of work and conduct from an employee and in turn, an employee should be protected from arbitrary action.
With reference to dismissal for misconduct, it is important that the misconduct for which the employee is charged is of such a nature that it warrants a dismissal on first offence. In order to assist the employer in determining whether a dismissal is the appropriate sanction for the misconduct, item 3(4) of the Code of Good Practice provides a guideline on what the disciplinary sanction should be:
“Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its own merits, are gross dishonesty or wilful damage to the property of the employer, wilfully endangering the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.”
In making a finding on the substantive fairness of the dismissal, the person required to do so, would consider whether the employee contravened a rule or standard in the workplace. If it is clear that the employee contravened a rule in the workplace it has to be established whether such a rule was, in the first instance, a reasonable rule or standard and secondly, whether the employee was aware of the specific rule or standard and, if not, should he have been aware thereof. The next important factor to consider is whether the employer applied the contravened rule consistently in the workplace. As a last consideration it has to be ascertained whether the dismissal will be an appropriate sanction for the rule or standard so contravened as envisaged in item 7 of the Code of Good Practice.
In the event of an employee committing certain misconduct, and before a dismissal takes place, the possibility of a sanction short of dismissal has to be explored. Moreover, the employer has to assess the possibility that the misconduct committed by an employee may nominate such employee to be a candidate for progressive discipline. Should it become evident that progressive discipline could be applied under the circumstances, or a sanction short of dismissal would be appropriate, dismissal would in all lieklihood not be a suitable sanction. Dismissal is considered to be the ultimate sanction.
The Courts have endorsed progressive discipline which allows for the employee to correct his/her behaviour in order to avoid dismissal on first instance. This is achieved by means of warnings or counselling. Should the dismissal be effected without a valid reason or effected in circumstances where a sanction short of dismissal would have been appropriate, it may lead to a finding determining that the dismissal was substantively unfair.
Not only should the dismissal be effected in accordance with a fair reason, it should also be follow a fair procedure – the audi alteram partem rule has to be applied. Each party should be afforded the opportunity to state its case before a finding is made and should no procedure be followed or should the procedure that was followed be flawed, a finding determining that the dismissal was procedurally unfair will likely be made.
Once again guidance can be sought in the Code of Good Practice (item 4(1)) which sets out requirements for a procedure before a dismissal takes place.
“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal inquiry. The employer should notify the employee of the allegations using a form of language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare a response and to the assistance of a trade union representative or a fellow employee. After the inquiry they should communicate the decision taken, and preferably furnish the employee with written notification of that decision.”
The Labour Courts place a high premium on procedural fairness. The Courts are willing to award compensation and in some instances even order reinstatement if a fair and correct procedure was not followed prior to the dismissal, despite an alleged valid reason for a dismissal.
Section 193 of the Labour Relations Act 66 of 1995 sets out the remedies for an unfair dismissal. It reads as follows:
“(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.”
Having to reinstate, re-employ or compensate an employee that made himself guilty of grave misconduct will not be desirable to say the least. If a dismissal was not substantively and procedurally fair, regardless of the fact that the process to reach such fairness might seem time consuming, costly and tiring, it will prove to be beneficial.