substantive and procedural fairness in discipline
Substantive and Procedural Fairness
For a disciplinary procedure and possible dismissal to be substantially fair, there must be a valid reason for it.
Mischke (1996) describe the difference between Substantive Fairness and Procedural Fairness as follows:
The difference between Substantive Fairness and Procedural Fairness:
o Substantive Fairness
Substantive Fairness relates to the reason for the dismissal, and it must be fair in terms of common law.
o Procedural Fairness
Procedural Fairness relates to the manner (the procedure) in which the employee is dismissed.
A good measure to test if there is a valid reason for finding somebody guilty of a transgression is by answering the questions in the next diagram that fall under the heading “Guilt”.
Figure 1.3: Guideline for determining Substantive Fairness
For a disciplinary procedure and possible dismissal to be substantially fair, there must be a valid reason for it.
Mischke (1996) describe the difference between Substantive Fairness and Procedural Fairness as follows:
The difference between Substantive Fairness and Procedural Fairness:
o Substantive Fairness
Substantive Fairness relates to the reason for the dismissal, and it must be fair in terms of common law.
o Procedural Fairness
Procedural Fairness relates to the manner (the procedure) in which the employee is dismissed.
A good measure to test if there is a valid reason for finding somebody guilty of a transgression is by answering the questions in the next diagram that fall under the heading “Guilt”.
Figure 1.3: Guideline for determining Substantive Fairness
Fair dismissal |
Right to protection against unfair dismissal
Every employee has the right not to be dismissed unfairly. This means that the reason for dismissing an employee must be valid as well as fair, and also that a fair procedure must be followed before an employee is dismissed. |
Meaning of dismissal
fair procedure
suspension
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According to Labour Relation Acts in different countries, dismissal an employee is deemed dismissed if:
Dismissal is regarded as unfair if it is not based on a valid and fair reason and does not take place in accordance with a fair procedure. The onus is on the employer to prove the fairness of the dismissal. Whether the reason is fair or not is determined mainly by the facts of every case and the appropriateness of dismissal as a sanction or disciplinary measure. The fairness of the procedure will depend on the extent to which the guidelines contained in the code of Good Practice: Dismissals were adhered to. There are three main grounds or reasons for dismissal: • the behaviour or conduct of the employee; • the capacity of the employee (in terms of performance, health and compatibility); and • the operational requirements of the employer. Onus (if the matter is referred for arbitration or to the Labour Court) The employee must prove that a dismissal actually took place, after which the employer must prove that the dismissal was fair. Misconduct This is defined as behaviour, intentional or negligent, which constitutes a breach of written or unwritten rules (e g the company's disciplinary code, the employee's contract of service, etc) and is a ground for fair dismissal. Two crucial aspects are discussed below. Substantive fairness This means that the employee must be guilty of the alleged transgression and that the sanction imposed must be appropriate. Determining guilt An employee will be found guilty of a transgression if the evidence gathered provides an affirmative response to the following questions: • Does the standard or rule in question exist? • Was the standard or rule transgressed? • Is it a valid or reasonable standard or rule? • Was the employee aware of the rule or standard, or should she reasonably have been aware of the rule or standard? • Has the employer acted consistently in applying it? The employer does not have to prove beyond reasonable doubt (as in a criminal court) that the employee committed a transgression. The test is whether, based on a balance of probability, the employer had reasonable grounds to believe that the transgression was indeed committed by the employee. (This means that the version which is probably true is accepted.) Sanction The following aspects are usually considered when deciding on the appropriateness of a sanction (e g dismissal): • the seriousness of the offence committed (including the nature thereof, e g theft, dishonesty, intimidation, assault or refusal to carry out instructions); • the employer's disciplinary code; • the consistency of the employer's action in the past; • previous warnings to an employee for similar offences; • the circumstances of the employer (i.e. e the employer company’s size, operational needs, structure, etc); • the personal circumstances of the employee (position in the organisation in terms of years of service, status and disciplinary record); • the cumulative effect of two or more offences. Fair procedure The code of Good Practice: Dismissals stipulates that disciplinary procedures need not be excessively formal, but does state that a more formal approach with regard to discipline is expected of larger employers. The following guidelines are laid down and should be adhered to: • An investigation into the facts must be instituted. • The employee must be informed of the allegations against her in a format and language that the employee can reasonably understand. • The employee must be given the opportunity to put her case in reply to the allegations. • The employee should be given a reasonable period of time in which to prepare. • The employee may be assisted by a colleague or a recognised shop steward. • The decision/findings should be conveyed to the employee after the investigation. • The employee must preferably be provided with the findings, together with reasons, in writing. • If a recognised shop steward is the subject of disciplinary action, the trade union should be informed and consulted. • The reasons for the dismissal must be explained. • The employee must be reminded of her right of referral to a bargaining council. Representation At any stage of the disciplinary process employees must be given the opportunity to be represented by a colleague (a co-worker in the same workplace) or, where applicable, a recognised shop steward as defined in the recognition agreement. External representation is only permitted in exceptional circumstances, such as where the legal issues are highly complex or one party does not have the ability to conduct its case. The function of the representative is to ensure that fairness is maintained and that the procedure is followed correctly. In this regard she may assist the employee by posing questions on her behalf explaining statements, or pleading for a reduction in the sanction imposed. Termination of service It is important to note that on completion of a disciplinary hearing at which an employee has been dismissed the reasons for dismissal must be explained to the employee. This should be done in writing. The employee must be reminded of her right to appeal, and thereafter to refer the matter to the CCMA or bargaining council, or to use any predetermined dispute-resolution mechanisms. The tapes/minutes of hearings at which employees' services are terminated must be kept available and must clearly state the nature of the disciplinary offence(s) and the reasons for dismissal. Disciplinary steps against a recognised shop steward or an employee who is an office-bearer or official of a trade union may not be taken before the trade union has been informed of the intention to institute Disciplinary action and consultation has taken place with it. Acknowledgement of receipt The employee's signature constitutes acknowledgement of receipt of a warning or the decision of a disciplinary hearing, and is not an admission of guilt. This is also not a requirement for validity. Should the employee not wish to confirm receipt, the document should be handed over in the presence of a third party. Witnesses Both management and employees are entitled to call witnesses when necessary during disciplinary procedures. Reasonable steps must be taken to inform witnesses that they have been called and to enable them to attend hearings/investigations. Postponement of investigations/interviews/hearings If circumstances such as the unavailability of witnesses or information make it impossible to carry out an investigation within the period allowed in the procedure, the interview or hearing may be postponed. Such postponement may not be longer than can be justified operationally. The employee in question should be informed in writing of the nature of the charges and the reason for the postponement. Suspension on pay (pending completion of a disciplinary investigation)
The suspension of an employee's services should be restricted to circumstances where it is suspected that the employee has committed an offence of such a nature that she cannot be permitted to continue working. The suspicion must be substantiated by initial evidence. The purpose of suspension is to prevent the employee's possible interference in the investigation by destroying evidence or intimidating witnesses, or where a sensitive situation may be exacerbated (e.g. after an assault has taken place), or if a disruption of work may result. These offences include but are not limited to fraud, theft, sexual harassment and unauthorised possession of company property. The circumstances of each case must be taken into account to determine whether the offence falls into one of these categories. The following procedure should be adhered to when an employee is suspended: • If a recognised shop steward is the subject of disciplinary action, the trade union should be informed and consulted. • The employee must be informed of the decision to suspend her and the reason for the suspension. A Notice of Suspension stating the provisional charge must be handed over. • The employee must be given the opportunity to respond to the envisaged suspension. • The employee must fully understand the situation and must know when and at what time she must return and where she must report. • The employee must be suspended for the duration of the investigation. • The investigation must be completed within a reasonable time and the suspension should preferably not be for longer than two weeks. However, the deciding factor will be the circumstances of the individual case. • This type of suspension must not be confused with suspension without pay as a sanction or punitive measure, which can only be imposed with the employee's consent. |