Two questions must be answered by any person chairing a disciplinary hearing:
- Is the sanction substantively fair?
- Was the hearing conducted in a procedurally fair manner?
The question of substantive fairness seldom arises when a lesser sanction is imposed, but is frequently posed when the sanction is dismissal. To establish the substantive fairness of a dismissal the reason for the dismissal is examined and, further, whether that reason was sufficient to justify dismissal. That is, does “the punishment fit the crime”? For example, in the matter of NEHAWU obo Motsoagae/ SARS (2010) 19 CCMA 7.1.6, Mr Motsoagae, an official employed by SARS, was found guilty of theft and dismissed. The court held that the dismissal was unfair because the employer had not shown that the dismissal was the appropriate sanction in this case.
A dismissal for a first offence is usually only considered fair when it is shown that the reason for the dismissal was because the offence was so serious that the employment relationship could not continue. For example fraud, sexual harassment, assault, drunkenness on duty, etc. Thus a dismissal would in all probability be deemed unfair if the reason for the dismissal is relatively minor. However, repeated offences resulting in an accumulation of disciplinary hearings where the sanctions imposed have not resulted in correcting the employee’s behaviour, could, nevertheless, result in the dismissal being seen as fair.
Secondly, was the matter handled in a procedurally fair manner? Procedural fairness means that the procedure that was followed in the dismissal was fair and legally sound. That is, that all the steps taken leading to the dismissal followed the company’s approved disciplinary procedure manual and that the employee was fully aware of the process, had been fully informed of the matter, had sufficient time to prepare for the hearing and was given the opportunity to state his or her case.
Section 187 of The Labour Relations Act has provisions which state that dismissal under certain circumstances is automatically unfair.
To learn more about Substantive and Procedural Fairness and how to ensure compliance with these concepts in disciplinary matters, email Gordon for more details: gordon@gordonangus.co.za.