Requirements for substantively and procedurally fair dismissals
A dismissal must be fair. In order for a dismissal to be fair, it must be proved that the dismissal is both substantively and procedurally fair.
These “two legs of fairness” can be summarised as follows:
1.1 Substantive Fairness
The employer is required to prove substantive fairness at a disciplinary inquiry.
a. Breach of Rule:
You need to prove that a rule/standard existed.
b. Employee contravened the rule:
Evidence to be presented to support the breach of rule/standard. Rule of thumb – “balance of probabilities”.
c. Legitimacy of the rule:
Even when it has been proven that a rule existed and the employee had contravened the rule, the Chairperson still needs to apply his/her mind to whether the rule was valid or reasonable.
Whether the employer applied the rule consistently.
e. Appropriate Sanction:
You cannot dismiss someone for reporting late for duty if it constitutes a first-time offence; you will issue them with a counselling. However, if an employee was dishonest (theft), should sufficient evidence be present to support the breach of rule, that employee can be dismissed even in the case of a first-time offence.
1.2 Procedural Fairness
Procedural fairness constitutes procedures used by a decision-maker, rather than the actual outcome reached. It requires that a fair and proper procedure be used when making a decision.
The following requirements for procedural fairness should be met:
a. An employer must inform the employee of allegations in a manner
which the employee can understand;
b. The employee should be allowed reasonable time to prepare a response to the allegations;
c. The employee must be given an opportunity to state his/her case during the proceedings;
d. The employee has the right to cross examine the initiator and any witnesses brought forth by the employer;
e. An employee has the right to be assisted by a shop steward (should there be a recognized union present in the workplace) or other employee during the proceedings;
f. The employer must inform the employee of a decision regarding a disciplinary sanction, in writing, and in a manner that the employee can understand;
g. The employer must give clear reasons for dismissing the employee;
h. The employer must keep records of disciplinary action taken against each employee, stating the nature of misconduct, disciplinary action taken and the reasons for the disciplinary action.