Procedural & Substantive Fairness

Introduction

All articles I write have one specific objective, underlying all of them and that is to make sense of industrial relations or employee relations, the latter being basically two sides of the same coin.

In my former articles we touched on the importance of having rules in the workplace, disciplinary charge formulation when the workplace rules are broken, the different ways in which an employment contract can be terminated legally and fairly (focusing on the concept of negotiated departure) and in my most recent article, titled Common Sense & Fair Play, we returned to the very basics of employee relations and discussed the basic legal principles which govern employee relations.

I find it useful, when conveying a particular concept, to “objectivise” such concept, thereby associating it with a commonly known object and then super-impose the knowledge material onto this object in a way that makes sense to the reader of the article.

In this article, the object is a hypothetical “building” with a foundation, on top of which some brick & mortar structure is built holding up a roof – a very basic building structure. The reader then must regard the rules of the workplace, dealt with in the former 3-part article, as the building plan or blueprint for the building, with more specific reference Schedule 8 annexed to the Labour Relations Act (LRA) or internal ER policies derived from it.

The legal principles discussed in my former article, Common Sense & Fair Play, form the foundation of this building. The roof is the fair labour practice which, within context of this specific article, is related to the enforcing discipline in the workplace and this roof is held up by two pillars, which will be our specific focus in this article.

I call these pillars Procedural Fairness and Substantive Fairness.

What constitutes Procedural and Substantive Fairness within context of Employee Relations?

We will deal with both these concepts in more specific detail later in this article, but, broadly speaking, procedural fairness addresses the “how” the employer is required to deal with when handling an employee relations matter, while substantive fairness addresses the “reason” or “rationale” for reaching the conclusions in the matter concerned.

The process concerned can be any managerial activity affecting the employee, be it dealing with a grievance, negotiating benefits and conditions of employment, outsourcing business activities, restructuring the organisation or enforcing discipline. In respect of all these managerial activities there is a procedural and a substantive fairness aspect to it.

In this article, we will concentrate on the procedural and substantive fairness requirements which apply when enforcing discipline in the workplace.

Procedural Fairness requirements

With due cognisance to the relevant provisions of Schedule 8 annexed to the LRA, the following procedural fairness requirements have to be observed by the employer when subjecting an employee to disciplinary proceedings:

• The charge – Inform the employee of the allegations against him/her in so much detail as would enable the employee to adequately prepare a response. Normally, this is done by way of a charge (cross reference my article on Charge Formulation).
• Unbiased decision-maker – Appointing an unbiased decision maker or chairperson to preside at the disciplinary proceedings (cross reference my article titled Common Sense & Fair Play in this regard).
• Representation – Allow some form of representation, if required by the employee, which may be restricted to internal representation. Requests for legal representation require specific consideration and is not an established right (cross reference my article titled Common Sense & Fair Play in this regard).
• Statement of case – Opportunity to state a case by testifying himself/herself, calling witnesses and arguing circumstantial evidence, while availing himself/herself to be cross examined and his/her documentary and other evidentiary submissions to be examined by the employer.
• Finding re guilt/innocence – Receiving a reasoned finding in respect of guilt/innocence, preferably in writing.
• Hearing aggravating circumstances argued – Opportunity to hear any aggravating circumstances being argued in aggravation of sanction, in case of a guilty finding before arguing mitigating circumstances.
• Arguing mitigating circumstances – Opportunity to submit argument if mitigation of sanction in case of a guilty finding.
• Finding re sanction to be imposed – Receiving a reasoned finding in respect of the sanction to be imposed, in the event of a guilty finding, preferably in writing.
• Appeal / Review – Opportunity to appeal or take on review both the guilty finding and the finding regarding the sanction to be imposed, provided that internal disciplinary procedures make provision for an internal appeal or review process.

Substantive Fairness requirements

Again, with due cognisance to the relevant provisions contained in Schedule 8 annexed to the LRA, the under-mentioned substantive fairness requirements have to be observed by the employer when subjecting the employee to disciplinary proceedings.

It, however, has to be pointed out that the under-mentioned requirements are specific “hurdles” the decision-maker in a particular disciplinary hearing has to overcome in order to be substantially fair in reaching a decision in respect of guilt and sanction.

It is also important to mention that the initiator of the case (the “prosecutor”) who is the owner of the charge, will be well-advised to take cognisance of these “hurdles” and to present his/her case in such a way that it addresses these “hurdles” and is aligned to it, which will have the benefit of sharing a common frame of reference regarding the substantive fairness requirements with the decision maker, at the same time simplifying the latter’s task.

• Existence of the rule – The decision-maker must be convinced by what is placed before him/her that an integral and central component of the case before him/her is an existing workplace rule.
• Knowledge of the rule – The decision-maker must be convinced that the rule (which exists in the organisation) was known by the employee or should reasonably have been known to him/her at the point of committing the offence.
• Legitimacy of the rule – The decision-maker must be convinced that the rule concerned is a legitimate rule. You cannot, for instance, have a rule that a subordinate is required to cover for a manager while he/she sneaks out to secretly play golf during working time.
• Breach of the rule – The decision-maker must be convinced (at least on a balance of probability) that the employee indeed breached the rule concerned.
• Fair application of the rule – Here the decision-maker has two aspects to consider:
  • Whether or not the employee had a valid defence for breaching the rule, such as something totally beyond his/her control leaving him/her no option but to breach the rule in the circumstances;
  • Whether the rule concerned is consistently applied in the workplace.
• The sanction imposed must be in relation to the gravity of the offence (“punishment to fit the crime”) At the point when deciding on the appropriate sanction to be imposed, following a guilty finding, the decision-maker has to evaluate and appropriately weigh the mitigating and aggravating circumstances in order to arrive at a sanction that is in keeping with the established gravity of the offence committed, all circumstances having been taken into account.

Important: If any one or more of the 6 considerations mentioned under the first 5 bullet points above reflect a negative result, e.g. no rule in existence, rule not known to the employee, rule not legitimate, rule not breached, rule not consistently applied or there is a valid explanation for breaching the rule, the case against the employee is rendered substantively unfair.

Bringing everything together

Now that we know what the foundation of this hypothetical “building” consists of and what the two pillars represent in respect of procedural and substantive fairness requirements, holding up the roof constituting the fair labour practice concerned, it should enable you not only to understand these requirements of fairness when disciplining an employee, but also to incorporate these fairness requirements into your employee relations practices and policies.

Assistance in this regard is available by simply contacting the JJK ER/IR Consultancy at jjk.erir@mweb.co.za.

Author: J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP