Substantive Fairness

Substantive fairness

By Nicolene Erasmus


Introduction:  substantive fairness

Misconduct is one of three grounds recognised by the LRA to justify the dismissal of employees. Employees, who commit misconduct, can be held accountable for their actions, and dismissal is seen as the ultimate sanction. 


The guidelines provided by item 7 of the Code of Good Practice are aimed at establishing substantive fairness.  As the employer bears the onus of proving the fairness of a dismissal (section 192), it is for the employer to establish compliance with the guidelines.[1]


Breach of rule

Conduct only becomes misconduct if it breaches a rule. This is why paragraph (a) provides that the first enquiry is whether or not the employee indeed contravened a rule. Not just any rule, however, but ‘a rule or standard regulating conduct in, or of relevance to, the workplace’. Paragraph (a) must be read in conjunction with item 3(1), which urges all employers to ‘adopt disciplinary rules that establish the standard of conduct required of their employees’ and provides that their form and content ‘will obviously vary according to the size and nature of the employer’s business’.


The sources of workplace rules are multifarious. Some may be contained in letters of appointment, induction booklets, disciplinary codes and collective agreements; others may operate by way of statute (for example, health and safety legislation) or custom and practice; and yet others may be inferred from the common law. This stage of the enquiry is concerned neither with the reasonableness of the rule nor with the employee’s knowledge of it, but only with whether there is in fact an applicable rule which is at least of ‘relevance’ to the workplace.


This proviso may be important because it may hit at rules that purport to regulate workers’ extra-mural activities – unless there is some demonstrable link between what they do in their own time and the requirements of the workplace. A general rule, such as one finds in some disciplinary codes, that conviction in a criminal court may lead to dismissal will therefore have to be applied with some circumspection.


Once the existence of the rule or standard has been established, the next enquiry under paragraph (a) is whether or not the employee contravened it – a purely factual question determined on a balance of probabilities with recourse, if necessary, to the onus of proof borne by the employer. If the probabilities are evenly weighed, the employee must get the benefit of any doubt which may exist as to his guilt.


Legitimacy of rule

Once an employee is found to have contravened a workplace rule or standard, it does not necessarily follow that he should be held accountable for having done so. At this stage of the enquiry, paragraph (b)(i) provides that the decision-maker must consider whether the rule or standard which has been broken was ‘valid or reasonable’.


One is dealing here only with the legitimacy of the rule per se, and not with the sanction for contravention. Generally, a rule or standard will pass muster if it is lawful and justifiable with reference to the needs and circumstances of the employer’s business. Negotiated rules will, it seems, be less rigorously tested than those which are unilaterally imposed by the employer, particularly if they are embodied in a collective agreement. If the rule is found to be invalid (for example, because it is in contravention of the BCEA) or unreasonable (for example, because it lacks any form of economic rationale), a dismissal for infringing it will be substantively unfair.


Knowledge of rule

An employee will escape liability not only if the rule itself is invalid or unreasonable, but also if he was ignorant of a legitimate rule. But proving actual knowledge of a rule may be hard work, particularly when an employee disingenuously pleads ignorance. To avoid this difficulty, paragraph (b)(ii) provides that an employer need prove either that the employee was aware or that he ‘could reasonably be expected to have been aware’ of the rule, thus importing an element of objectivity into the test.


This provision must also be read with item 3(1), which provides that ‘an employer’s rules must create certainty and consistency in the application of discipline’ and that to this end, rules should be ‘clear and made available to employees in a manner that is easily understood’. The CCMA has already held that all the rules of the workplace need not be spelled out in meticulous detail to employees (Motswenyane v Rockface Promotions). Item 3(1) also provides that some rules (for example, a rule against theft) ‘may be so well established and known that it is not necessary to communicate them’. And it would seem that the higher the status of the employee, the stronger the presumption that he was aware, or should have been aware, of all rules including the subtler implied variety.



Once it is established that an employee contravened a workplace rule, that the rule was valid or reasonable and that the employee had knowledge of the rule, the next enquiry is whether the employer applied the rule consistently (paragraph (b)(iii)). Item 3(6) reinforces this requirement by providing that employers should apply the penalty of dismissal ‘consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration’.


Those familiar with earlier labour court judgments will recognise in this the so-called ‘parity principle’, which in its statutory form applies both vertically and horizontally in time. An employee who has in the past been repeatedly let off without so much as a warning for minor pilfering could raise this principle if he is suddenly dismissed on a subsequent occasion. So, too, could another employee in the light of the leniency with which the first was treated. And where two employees were involved in the same misconduct, one could justly complain if he was dismissed and the other not. In short, employers must take care to ensure that two cases are indeed distinguishable before meeting out different penalties, which is sometimes no easy task. For example, measuring respective degrees of blame in a workplace fight may present problems. Also, the application of the parity principle may be problematic in the application of an employer’s disciplinary regime at different levels of the company hierarchy. As has already been pointed out in this journal, unions are given to feeling that their members are treated more severely than senior personnel for kindred offences. To deprive this point of substance, an employer must ensure that equal justice applies to all ranks.


Appropriate sanction

According to paragraph (b)(iv), dismissal must have been ‘an appropriate sanction for the contravention of the rule or standard’. Again, further guidance can be found in the body of the Code.


In language strange to lawmakers, we are told in item 3(2) that the courts have endorsed ‘the concept of corrective or progressive discipline’ – meaning, of course, that employers are required to endorse it too. Corrective discipline, as any penologist will know, means that it is aimed at righting rather than retribution, and what ‘progressive’ denotes is explained as ‘a system of graduated disciplinary measures such as counselling and warnings’.


The thrust behind these sentiments is plain: tolerance must replace terror as a method of ensuring that employees discharge their duties properly – reform rather than retribution is the objective of discipline in the workplace. So, the Code tells us, ‘informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline’ and repeated misconduct warrants warnings, ‘which themselves may be graded according to degrees of severity’ – up to final warnings or other action short of dismissal for ‘more serious infringements’ (item 3(3)).


But the employer’s tolerance threshold is recognised. ‘Dismissal’, says item 3(3), ‘should be reserved for cases of serious misconduct or repeated offences’. This theme is picked up in item 3(4): ‘Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable’.


Examples of such serious misconduct are ‘gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination’. The list is illustrative, not exhaustive. But the examples are instructive, because they suggest what the drafters meant by the elastic concept of ‘intolerability’. An employment relationship becomes intolerable when the employee steals from or defrauds the employer, intentionally damages his property, or beats him or his customers up. But it does not when the employee merely breaches a workplace rule like taking an extended tea break – at least the first time.


The principle underlying the concept of intolerability is not hard to find: employers are not expected to retain the services of employees who have by their intentional and blameworthy conduct destroyed the trust upon which the employment relationship rests to an extent that it can’t be revived.


Offences such as those listed tend to do so at first instance; minor misdemeanours merely erode it, which is why the employer is expected to make some attempt to repair the damage by ‘corrective or progressive’ discipline. And this may be so even in cases of serious misconduct covered by the examples specified. In Strydom v USKO Ltd, the CCMA even suggested that theft does not necessarily justify dismissal. On the other hand, misconduct not specified in the examples (reckless off-route driving) has been held to have rendered the continuation of the employment relationship intolerable (Sigasa v Kemklean Hygiene Systems).

But the gravity of the misconduct is not in itself definitive. The employer must consider in addition ‘factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself’ (item 3(5)). The weight of these ‘factors’ will, of course, correlate inversely with the gravity of the misconduct. But the important point is that the employer must be able to show that they were at least considered before the decision was taken to dismiss.


Logic may not be able to provide an explanation why, but elementary justice dictates that, all things being equal, a first offender should be treated more leniently than a recidivist. Length of service and ‘personal circumstances’ create more difficulty.


The principles of natural justice do not say that offenders should be treated more leniently if they have been around for longer; indeed, seniority could arguably work the other way. So, too, with ‘personal circumstances’: why should an employee with a family to support be given a second chance and an unattached one not?


Moreover, employers inclined to exercise compassion by the ‘personal circumstances’ and length of service of employees could run foul of the requirement of consistency in the application of discipline discussed above.

[1]Employment Law Journal 1997 October Cracking the Code The Code of Good Practice: Dismissal



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