This post was written by JJ (Koos) van der Merwe
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.
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.
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:
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.
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.
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 firstname.lastname@example.org.
Author: J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP