Disciplinary hearings are never a pleasant experience for either the employer or employee. These can be made even more onerous for you, the employer. This is if you do not abide by the rules of fairness prescribed for these procedures. If you are suspected of not being totally impartial during a disciplinary hearing, the employee could take you to the Commission for Conciliation, Mediation and Arbitration (CCMA). For a disciplinary hearing to pass muster, it must be both substantively and procedurally fair.

What Is ‘Substantive Fairness’?

For a disciplinary hearing to be substantively fair, the reason – in other words substance – of the dismissal needs to be fair.

Unfortunately for employers, the guidelines for substantive fairness are not as cut and dried as you would like. For example, according to section 7 of Schedule 8 of the Labour Relations Act – Code of Good Practice: Dismissal – even though a dismissal for misconduct may be the obvious course of action to take, when you consider dismissing an employee for misconduct, look at:

  • Did the employee break a rule of conduct that people know to be an established rule in the workplace?
  • Was this rule reasonable?
  • Is this the employee’s first offence? (If it was you should be treating this person more leniently than a repeat offender.)

What Is ‘Procedural Fairness’ in a Disciplinary Hearing?

If you do decide to dismiss one of your employees, you need to do so in a manner that is fair and reasonable. For example, before you dismiss an employee you need to hold a meeting with that employee. This is so he or she can state his or her case. In addition, before such a meeting is held you should adopt a system of progressive discipline. This is where you help the employee correct his/her behaviour by closely monitoring their work, You could also give them training and the like.

If you conduct disciplinary enquires that are not both procedurally and substantively fair, you could land up having a judgment go against you at the CCMA or – worse – the Labour Court or the Labour Appeal Court. Sign up for Global Business Solutions’ Effective Discipline in the Workplace course. This two-day seminar will equip you with the skills and knowledge that will enable you to confidently chair formal and informal disciplinary enquiries. Click here for more information.

At Global Business Solutions, we provide a cradle-to-grave service. As such, we would like to invite you to be part of our Masters (MOTI) programme applied to Labour Law. This takes place in association with the Da Vinci Institute. (Click here for more information.) This programme is at NQF level 9 and will provide you with a thorough knowledge of labour law. To leave us your details for one of our consultants to contact you about our Masters programme, click here.


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