A Brief Guideline To Procedural Fairness

A Brief Guideline To Procedural Fairness
November 29, 2018 Chante Hobbs

Procedural fairness may be regarded as the “rights of the employee” in respect to the procedure to be followed during the disciplinary process. Employers should always ensure that they follow the correct procedure when dismissing employees. Even if there are good reasons for dismissal, such as theft or any other gross misconduct, an employer is still required to follow a fair procedure which includes providing the employee with an opportunity to state their case. Catching an employee red-handed stealing does not justify a dismissal without affording that employee an opportunity to state their case.

It is imperative that employers adopt disciplinary rules in the workplace so the standards of conduct required by the employees are established. These rules must be clear and made available to all the employees in a manner that is easily understood.

Procedural fairness prior to the Hearing

Employers are often negligent when it comes to following the correct procedure prior to the hearing being conducted, as they feel it is time-consuming and unnecessary. Employers should take note of the following prior to the hearing:

  1. The accused must be informed in writing of the date, time and venue of the disciplinary hearing.
  2. The accused must be afforded a reasonable time to prepare their defence and response. A reasonable time would be at least 2 clear working days prior to the hearing date.
  3. The accused must be advised in writing of the full nature and/or details of the charges laid against them.
  4. The accused must be informed in writing of their rights, such as being entitled to assistance from a trade union representative or a fellow employee. It is important that employers make available the accused’s representative and witness on the day of the hearing.

The above must be explained to the accused in a language and manner that they understand.

Failing to follow the correct procedure may result in the matter being referred to the CCMA or Bargaining Council, and the company may lose its case based on the procedure not being followed.

Should an employer is unsure about what the correct procedure is to follow, it is always better to seek legal advice.

ABOUT THE AUTHOR

Ebrahim Moosa obtained an LLB degree from the University of South Africa. After completion of his degree, Ebrahim joined a firm of attorneys as a clerk and thereafter as a practising attorney. His speciality lies in civil litigation, labour law and various other areas of law. He joined SEESA in 2017 as a legal advisor, having vast knowledge from private practice.

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