Legal Articles

The concept of fairness is unique in labour and employment law in South Africa, and is a vital requirement in the resolution of unfair dismissal disputes. Unlike other areas of law such as criminal litigation, civil litigation or contractual disputes where lawfulness is the cog that wins the day, the fairness of actions is the pedestal upon which a case hinges upon in labour litigation.

For a labour dismissal to be regarded as above board, two requirements must be met and these are substantive fairness and procedural fairness.

Procedural fairness

This refers to the fairness of the process under which an employee was dismissed, and is usually where most disputes that are referred to the CCMA are based upon. A company ought to have a disciplinary code according to which grievances and disputes are resolved. Industry specifics also play a role in the dictation of how these procedures work but in general terms, there must be a procedure whereby whenever allegations are raised against an employee, he/she must be given ample opportunity to answer to the allegations. The following are the least minimum that must be afforded to the employee:

1. Notice of allegations are given to the employee;
2. An opportunity to respond to the allegations is given to the employee;
3. Based on the employee’s response to the allegations, the employer may decide whether to arraign the employee before a disciplinary hearing or not; and if so
4. Notice of disciplinary hearing;
5. Ample opportunity to study the allegations and prepare a defence;
6. The notice must notify the employee of their rights e.g representation, to bring witnesses, to adduce and rebut evidence, language interpretation, to be present at the hearing etc;
7. The impartiality of the party chairing the hearing;
8. Within a reasonable time after the conclusion of the hearing, the employee must be furnished with the decision and reasons for that decision, together with notification of any further recourse e.g appeal, if any.

Substantive fairness

This refers to the reasons for the dismissal i.e the reason for dismissal must be such that it warrants such dismissal, and sufficient evidence must be presented by the employer to substantiate such allegations. In employment law, reasons that warrant a dismissal are usually those that result in the trust relationship between the employer and the employee being broken. As one relationship (employment) where trust is of the utmost importance, it follows that where it is broken then dismissal may be justified. In the case of Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC 49 (10 December 2021), the central determination that was before the Courts was whether the conduct of the employee had actually resulted in the trust between the employee and the employer being broken. This was later answered in the affirmative by the Labour Appeal Court which subsequently declared that the dismissal had been fair. The employee had informed the employer that he cannot attend work that day as he was ill, but he later attended a rugby match at a venue which is further away than the workplace.

In the same vein, dismissing an employee for coming to work 5 mins late, for the first time and without any other misconduct recorded in their profile, would be difficult to pass the test of substantial fairness. However, each case is determined on its own merits.

The concept of fairness plays a crucial role in labour litigation and is one where the prospects of the dispute will normally hinge on.

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