The Importance of Procedural and Substantive Fairness in the Application of progressive discipline in the Workplace

Disciplinary processes are a cornerstone of workplace relations in South Africa, playing a pivotal role in maintaining order, accountability, and fairness. Ensuring that progressive discipline and disciplinary hearings are conducted with both procedural and substantive fairness is not only legal requirement but also an ethical imperative for fostering a culture of trust and integrity in the workplace.

What is Procedural and Substantive Fairness?

Procedural fairness refers to the process followed when dealing with a disciplinary issue. It ensures that the accused employee is given a fair opportunity to respond to the allegations against them. This includes providing adequate notice of the hearing, sharing the charges in advance, and allowing the employee to present their side of the story, have a translator where required and call witnesses if necessary.

Substantive fairness, on the other hand, pertains to the actual reasons for the disciplinary action. It requires that there be a valid and justifiable reason for the sanction imposed. Employers must demonstrate that the decision to discipline or dismiss an employee is based on facts and is reasonable under the circumstances.

The Legal Framework

South Africa’s Labour Relations Act (LRA) emphasizes the importance of fair treatment in disciplinary processes. Section 188 of the LRA states that a dismissal is unfair if it is not affected for a fair reason and in accordance with a fair procedure. Schedule 8 of the LRA, known as the Code of Good Practice: Dismissal, provides detailed guidance on what constitutes fair procedures and valid reasons for dismissal.

The Code of Good Practice highlights that the primary purpose of discipline in the workplace is to correct behavior rather than to punish employees. Employers should adopt a progressive approach to discipline, starting with corrective measures such as counselling or warnings before resorting to dismissal, except in cases of serious misconduct.

Why Procedural Fairness Matters

1. Protecting Employee Rights: Procedural fairness ensures that employees are treated with

respect and dignity, reinforcing their constitutional rights to fair labour practices.

2. Minimizing Risk: A flawed process can render a dismissal unfair, even if the employee’s

misconduct is severe. This could result in reinstatement or compensation orders issued by

the CCMA following an arbitration.

3. Building Trust: Transparent and fair procedures foster trust in the organization, promoting

better employee relations and morale.

The Importance of Substantive Fairness

1. Justifying Actions: Employers must have concrete evidence to support disciplinary decisions. This ensures that actions taken are defensible and aligned with organizational policies.

2. Consistency: Substantive fairness promotes consistency, reducing the perception of bias or favouritism in disciplinary decisions.

3. Workplace Harmony: Fair outcomes contribute to a sense of justice, which is critical for

maintaining a positive workplace culture.

The Role of Consistency in Disciplinary Processes

Consistency is a cornerstone of fairness in disciplinary processes. Employers must ensure that rules are applied uniformly across the organization and that similar cases are treated in a similar manner. Inconsistent application of discipline can lead to claims of unfair treatment and damage workplace morale.

A consistent approach to discipline not only reinforces trust but also ensures that employees clearly understand the consequences of their actions. Consistency aligns with the principle of fairness outlined in the Code of Good Practice and helps prevent potential labour disputes.

Practical Steps to Ensure Fairness

1. Policy Adherence: Develop and follow clear disciplinary policies aligned with the LRA and the Code of Good Practice.

2. Corrective Approach: Focus on correcting behavior through progressive discipline, such as counselling and warnings, before resorting to harsher measures.

3. Training: Train managers and supervisors on fair disciplinary practices, legal requirements, and the importance of consistency.

4. Independent Chairpersons: Where possible, use independent chairpersons to conduct

hearings to avoid bias.

5. Record Keeping: Maintain detailed records of the disciplinary process to demonstrate

compliance with fairness principles.

How Employment Concepts Can Assist

Experienced consultants at Employment Concepts can assist with the drafting of suspension documentation, disciplinary charge sheets, and the chairing of disciplinary hearings. We also provide training for supervisors and managers on the progressive disciplinary process to ensure that a solid foundation is laid where corrective actions have failed, and an employee is dismissed.

Conclusion

In South Africa, the dual principles of procedural and substantive fairness are not merely legal formalities but essential components of a fair and just workplace. Employers who prioritize these principles benefit from improved employee relations, reduced legal risks, and a reputation as an ethical and responsible organization. By embedding fairness in disciplinary hearings and focusing on correcting behavior rather than punishment, companies lay the groundwork for a harmonious and productive workforce. Ensuring consistency in the application of rules and discipline further strengthens trust and upholds the integrity of workplace policies, ensuring long-term success in a competitive environment.

Contact Elandi Jacobs for assistance on elandi@emcon.net.za

*NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information