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ARTICLE 9

In certain circles, the viewpoint is wrongly held that a formal disciplinary enquiry is still required in order to justify a finding that procedural fairness has been complied with. 

In these circles, the viewpoint is wrongly held that such procedural fairness furthermore entails the following:

(a)      the putting of charge(s) to an employee by an employer;

(b)      the requirement that an employee should plead to such charge(s);

(c)      evidence is to be led by both the employer and employee and both sides should have the benefit of evidence-in-chief, cross-examination and re-examination; and

(d)      aggravating and mitigating circumstances were to be considered before an appropriate sanction is imposed.

Contrary to the above, the viewpoint is held that, in terms of the 1995 LRA, a formal disciplinary enquiry is no longer required, but what is required is simply an opportunity for the employee to respond to such allegations, entailing an application of very different elements of procedural fairness than the ones as set out above.

This article identifies the differences, when comparing the 1956 LRA to the 1995 LRA, with regard to procedural fairness regulating dismissals on the basis of misconduct.

DIFFERENCES WITH REGARD TO PROCEDURAL FAIRNESS PERTAINING TO DISMISSALS ON THE BASIS OF MISCONDUCT IN THE 1956 LRA, COMPARED TO THE 1995 LRA

The aforesaid differences are identifiable:

1.       the procedural fairness requirement as contained in the 1956 Act was based on a criminal justice module with elaborate procedural requirements, whereas, in terms of the 1995 Act, these elaborate procedural requirements are inappropriate;

2.       in terms of the 1956 Act, procedural fairness was considered in an industrial court forum, whereas, in terms of the 1995 Act, same is considered during arbitration before the CCMA or relevant bargaining council;

3.       in terms of the 1956 Act, procedural fairness was viewed as part of an unfair labour practice, whereas, in terms of the 1995 Act, procedural fairness is part of the unfair dismissal regime;

4.       thus, in terms of the 1956 Act, a so-called formal disciplinary enquiry was required in order to justify a finding that procedural fairness has been complied with and such enquiry encompassed, inter alia, the following elements:

(a)      the putting of a charge(s) to an employee by an employer;

(b)      an employee was requested to plea to such charge(s);

(c)      evidence was led by both the employer and employee and such evidence, on both sides, consisted of evidence-in-chief, cross-examination and re-examination;

(d)      aggravating and mitigating circumstances were considered before a sanction was imposed; and

5.       on the other hand, in terms of the 1995 Act, a formal disciplinary enquiry is not required but an opportunity is to be provided for the employee to respond to allegations.  The following elements of the procedural fairness required in terms of the 1995 Act are identifiable:[1]

(a)      an employer is obliged to investigate allegations against the employee;

(b)      the employee is provided with an opportunity to respond to such allegations;

(c)      during the investigation, the employee is entitled to the assistance of a representative;

(d)      the employer is required to make a decision as to the allegations and notify the employee of such decision; and

(e)      the employee also has to be notified that, if a dispute is declared re such dismissal, such dispute is to be referred to either the CCMA or the relevant bargaining council or in terms of a procedure contained in a relevant collective agreement.

With reference to the aforesaid, the labour court, in Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others,[2] stated the following:

‘The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness.  They recognise that for workers, true justice lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions are found wanting.  For employers, this right of the resort to expeditious and independent arbitration was intended not only to promote rational decision-making about workplace discipline, it was also an acknowledgement that the elaborate procedural requirements that have been developed prior to the new Act were inefficient and inappropriate and that if a dismissal for conduct was disputed, arbitration was the primary forum for determination of the dispute by the application of a more formal process ... When the code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss...’


[1]          Avril Elizabeth Home for the Handicapped v CCMA [2006] 9 BLLR 833 (LC); (2006) 10 SALLR 118 (LC); Mathabathe v Nelson Mandela Bay Metropolitan Municipality (2016) 27 SALLR 122 (LC)

[2]          Supra at pages 839 to 839

© SALLR 2018