When Procedure Becomes the Case — A Warning to Employers
In South African labour law, employers often focus heavily on what an employee did wrong. Theft, insubordination, and absenteeism — these are seen as the core of the case; however, time and again, disputes before the CCMA remind us of a critical truth: The strength of your case is not only in the misconduct, but in the process you follow.
The Legal Position
The Labour Relations Act (LRA), read together with the Code of Good Practice: Dismissal, requires that any dismissal must be both:
- Substantively fair (there is a valid reason), and
- Procedurally fair (a fair process was followed)
Most employers understand the first requirement. Fewer fully appreciate the second.
Procedural fairness requires, among other things:
- A proper investigation
- Clear notification of allegations
- Reasonable time to prepare
- The opportunity to state a case
- An impartial Chairperson
- Consistent application of discipline
On paper, these seem straightforward. In practice, this is where a lot of cases fall apart.
Where Employers Go Wrong
In our experience, procedural failures are rarely dramatic — they are subtle, and often well-intentioned:
- A disciplinary notice that is vague or rushed
- A Chairperson who has prior involvement in the matter
- Insufficient time given to the employee to prepare
- A failure to properly consider mitigating factors
- Outcomes that appear pre-determined
At arbitration, these small missteps are magnified.
Even in cases of serious misconduct, Commissioners will not hesitate to find a dismissal unfair where procedure is lacking. The result? Reinstatement or Compensation — sometimes in situations where the misconduct itself was undeniable.
The CCMA’s Approach
The CCMA does not simply ask: “Did the employee do it?”, It asks:
- Was the employee given a fair opportunity to respond?
- Was the process reasonable under the circumstances?
- Did the employer act consistently and objectively?
Employers are often surprised to learn that a “technically guilty” employee may still succeed at arbitration because the process was flawed.
Our View: Procedure Is Not a Formality — It Is the Case
There is a persistent misconception that disciplinary procedure is an administrative hurdle — something to “get through” before implementing a decision already made. This is a dangerous mindset.
In reality, procedure is not separate from the case — it is part of the evidence the employer presents. A fair process demonstrates:
- Objectivity
- Reasonableness
- Good faith
Without these, even the strongest substantive case becomes vulnerable.
A Practical Takeaway
Employers should shift their approach from: “How quickly can we conclude this matter?” to: “How do we ensure this process can withstand scrutiny at the CCMA?”
This means slowing down where necessary, documenting properly, and ensuring that each step is defensible — not just internally, but externally.
Final Thought
In labour disputes, the outcome is often decided long before arbitration — in the way the process is handled from the very beginning.
Employers who treat procedure as a mere formality often learn this lesson the hard way.
Those who treat it as central to fairness — and strategy — place themselves in a far stronger position.
Should you be unsure about what steps or process to follow to ensure procedural fairness, please contact us, as we can help you.
Off the Desk of
Gerhard Kotze’
Managing Member