Procedural Fairness

In South Africa, stringent labour laws have created somewhat of a minefield for employers to navigate when it comes to disciplinary procedures. While protecting the rights of the employee is paramount, employers that are not completely up to date with the relevant legislation could soon find themselves in hot water.

Employers lose a lot of cases referred to The Commission for Conciliation, Mediation and Arbitration (CCMA) by disgruntled employees or their union representatives. Losing a CCMA case has three distinct drawbacks: the employer is usually found to be financially liable; the business’ reputation is damaged, and a record of wrongful-dismissal or treatment made; and precious business hours are lost while attending CCMA hearings, hampering productivity and morale.

There are four main reasons why employers lose CCMA cases. The first reason is that they do not follow the correct disciplinary procedures. Whether this is due to ignorance or done intentionally makes no difference – in the eyes of the law, ignorance is no excuse. The second shortcoming occurs when employers fail to act consistently, for example, when one employee is more harshly disciplined than another for a similar offence. Thirdly, employers lose cases because they fail to hold a procedurally fair hearing. There are strict steps to follow, and if this is not adhered to, the employer is in trouble. The last is the failure to maintain a reliable and accurate document trail throughout the entire disciplinary process. Complete documentary evidence is essential to success.

To a certain degree, the disciplinary process is designed to assist employees to unlock their true potential. The purpose of the disciplinary process is to correct an employee’s path, to help them improve in their position and learn from their mistakes. Too often, employers approach discipline incorrectly, leading to costly CCMA cases, further disgruntled employees, and a sour experience for all parties.

It is therefore imperative that employers compile and implement proper disciplinary codes, procedures and policies which are enforced consistently and fairly to avoid disappointment at the CCMA.