Substantive Fairness in Dismissals

We receive numbers of enquiries from employers wanting to know what is meant by “substantive  fairness” and how does the Chairperson of a hearing decide that the sanction he has decided upon is “substantively fair.” In short, it can be taken to mean that “the penalty must fit the crime.” Substantive fairness usually comes under scrutiny in cases of dismissal – rarely, if ever, on sanctions of warnings, suspension or demotion. Therefore, the first thing to examine is “on what grounds did the employer decide to dismiss?”

Thus we must firstly establish the reason for the dismissal, and secondly decide if that reason was a sufficient reason to justify a dismissal. It follows therefore the Chairperson of the hearing must consider many factors. He is required, for example, to first consider whether a sanction other than dismissal would achieve, or is likely to achieve, the required result. The required result, obviously is that, whatever action is taken, it must ultimately correct the employee’s behaviour. The matter under consideration may be a matter of misconduct, or it may relate to the capacity or incompatibility of the employee, and each case has it’s own merits to be considered, and it’s own mitigating, aggravating and extenuating circumstances.

       
A dismissal on a first offence is seldom considered to be substantively fair, unless the matter is of such gravity and seriousness, that it is impossible for the employment relationship to continue. Instances might be sexual harassment, fraud, assault, theft, drunkenness on duty, and so on. By the same token, a dismissal for a relatively minor offence such as absence without authority, or habitual late-coming, or a minor insubordination, would also be found to be unfair, and probably re-instatement would be awarded.

      
The Labour Relations Act does make provision in section 187 for circumstances where a dismissal effected for one of the listed reasons is never fair, and employers should be aware that should they dismiss for any of the listed reasons, irrespective of circumstances, the Act states that such a dismissal is automatically unfair and the dismissed employee could be awarded up to 24 months salary in compensation.

  
The employer must be able to show that the decision to dismiss was a reasonable decision based on all the circumstances of the matter, and the Chairperson should be able to commit to writing all the reasons upon which his finding is based. His finding should include his reasons for rejecting sanctions other than dismissal. The Arbitrator, at a CCMA Arbitration hearing, will consider the reasons put forward by the employer for deciding upon dismissal, and such consideration will include the reasons why the employer rejected other less harsh sanctions.

         
The employer will also be required to show that  affair procedure was followed, that the evidence advanced by the employer actually proves guilt of the employee based on the balance of probability, and that the employer has been consistent in the past on the application of other instances of similar misconduct.

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