Disciplinary hearings
Fair and Unfair Procedures | South Africa | Labour Law

According to the Labour Relations Act, section 188 stipulates that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or is based on the employer's operational requirements, and that the dismissal was effected in accordance with a fair procedure. Furthermore, any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure, must take into account any relevant code of good practice issued in terms of the LRA, specifically, schedule 8. Schedule 8 deals predominantly with the procedural elements of a disciplinary hearing. When an act of misconduct occurs, the employer should conduct an investigation to determine whether there are grounds for disciplinary action and dismissal. This does not need to be a formal enquiry. The employer should then notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee is entitled to a reasonable time (minimum 2 clear working days) to prepare his defence and is entitled to the assistance of a trade union representative or a fellow employee. This constitutes the core rights of an employee when suspected and charged of misconduct. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the CCMA or to any dispute resolution procedures established in terms of a collective agreement within 30 days. Procedural fairness in general terms refers to a disciplinary hearing that has to be held to afford the employee the opportunity to state his or her defence. This, by no means, requires the employer to hold a “mini court” case. The code does not substitute the employers’ own procedures and if the employer has it’s own disciplinary code of conduct, it should adhere to the principles set out therein. Employers who do not have their own disciplinary rules must adhere to the principles set out in schedule 8 and should be mindful of the requirement of “consistent discipline”. It should at least ensure that it applies the requirements of schedule 8 in a consistently manner, to all employees suspected of misconduct.

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