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Information on Procedural Fairness

Information extracted from the internet, not original of this website:

Even if there are valid substantive reasons for a dismissal, an employer must follow a fair procedure before dismissing the employee. Procedural fairness may in fact be regarded as the "rights" of the worker in respect of the actual procedure to be followed during the process of discipline or dismissal.

Procedural Fairness: Misconduct

The following requirements for procedural fairness should be met:

  • An employer must inform the employee of allegations in a manner the employee can understand
  • The employee should be allowed reasonable time to prepare a response to the allegations
  • The employee must be given an opportunity to state his/ her case during the proceedings
  • An employee has the right to be assisted by a shop steward or other employee during the proceedings
  • The employer must inform the employee of a decision regarding a disciplinary sanction, preferably in writing- in a manner that the employee can understand
  • The employer must give clear reasons for dismissing the employee
  • The employer must keep records of disciplinary actions taken against each employee, stating the nature of misconduct, disciplinary action taken and the reasons for the disciplinary action

Procedural and substantive fairness.

The areas of procedural and substantive fairness most often exist in the minds of employers, H.R. personnel and even disciplinary or appeal hearing Chairpersons as no more than a swirling, gray thick fog.This is not a criticism – it is a fact.

Whether or not a dismissal has been effected in accordance with a fair procedure and for a fair reason is very often not established with any degree of certainty beyond " I think so" or "it looks o.k. to me."What must be realized is that the LRA recognizes only three circumstances under which a dismissal may be considered fair – misconduct, incapacity (including poor performance) and operational requirements (retrenchments).

This, however, does not mean that a dismissal effected for misconduct, incapacity or operational requirements will be considered automatically fair by the CCMA should the fairness of the dismissal be disputed. In effecting a dismissal under any of the above headings, it must be further realized that, before imposing a sanction of dismissal, the Chairperson of the disciplinary hearing must establish (satisfy himself in his own mind) that a fair procedure has been followed.

When the Chairperson has established that a fair procedure has been followed, he must then examine the evidence presented and must decide, on a balance of probability, whether the accused is innocent or guilty.

If the accused is guilty, the Chairperson must then decide what sanction to impose. If the Chairperson decides to impose a sanction of dismissal, he must decide, after considering all the relevant factors, whether the dismissal is being imposed for a fair reason.The foregoing must be seen as three distinct procedures that the Chairperson must follow, and he/she must not even consider the next step until the preceding step has been established or finalized.

Procedural Fairness

 

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