PROCEDURAL FAIRNESS IN A DISCIPLINARY HEARING: WHY THE PROCESS MATTERS JUST AS MUCH AS THE OUTCOME

Written by: Tamia Gosling

Procedural unfairness in disciplinary hearings can turn a substantively fair dismissal into a costly lesson.

In the workplace, disciplinary hearings are not just about deciding guilt or innocence. They are about ensuring a fair and transparent process. Employers often forget that in labour law, how you conduct a hearing can be just as important as what you decide. Procedural fairness ensures that every employee is given a genuine opportunity to respond before any disciplinary action is taken.

Under section 188(1)(b) and 188(2) of the Labour Relations Act 66 of 1995 (“LRA”), any person considering whether a dismissal is fair must consider relevant Codes of Good Practice. The new Code of Good Practice: Dismissal (GN 3470, GG 53294, 4 September 2025) replaces the old Schedule 8 code and provides clear guidance on ensuring dismissals are procedurally and substantively fair. This means every employee has the right to a fair hearing before dismissal or any other disciplinary sanction is imposed, and employers must follow the procedural standards as prescribed by law.

WHAT PROCEDURAL FAIRNESS REALLY MEANS

A fair hearing requires that the process be handled transparently, respectfully and in accordance with legal standards. Employers are to ensure the following

• The employee is informed of the charges in clear and understandable terms in a language the employee understands. For example, if the employee is predominantly Xhosa, it is recommended to have an interpreter translate the notice and its contents when served to ensure that it is understood by the employee.

• They receive reasonable notice prior to the hearing, in writing, to prepare their responses. We recommend that a notice of enquiry is given at least 48 hours (2 days) before the hearing.

• The employee has the right to representation by a fellow employee or a trade union representative.

• Where an employee does not understand the language used in the hearing, they have a right to a competent interpreter. The interpreter must be fluent in both languages and independent of the matter at hand. Proceeding without proper interpretation undermines the employee’s ability to participate effectively and may invalidate the outcome entirely.

• Employees as a part of their representations have the right to call their own witnesses as well as question witnesses brought by the company. 

A FEW TIPS FROM THE CONSULTANTS AT IVOCATE:

1. SHARING EVIDENCE BUNDLES PRIOR TO HEARING

Occasionally we have seen that employers present large or complex evidence bundles on the day of the hearing. This may lead to a disadvantage for the employee, if they are not given adequate time to review the documentation. That is why we recommend that employers share the bundle of evidence with an employee prior to their hearing, so that they are afforded adequate time to prepare and arrange witnesses if they require.

If a large or complex evidence bundle is introduced on the day of the hearing, the employee should be allowed to request a postponement. Denying such a request for postponement can render the process procedurally unfair, as the employee would not have had a meaningful opportunity to understand or respond to the allegations of misconduct against them.

Countless employers have been placed under scrutiny at the CCMA and required to pay a sum of money, not because the misconduct wasn’t proven, but because their process was procedurally unfair. 

2. THE EMPLOYEE’S RIGHT TO WITNESSES

When an employee wishes to call witnesses, often fellow employees, the responsibility for arranging their attendance is shared between the employee and the employer.

SHARED RESPONSIBILITY. The employee should first inform the company in advance of the witnesses they intend to call for the hearing. Early notification is preferable, as it allows the company to plan and coordinate effectively.

If a disciplinary hearing is scheduled and a required witness is unavailable, whether off duty, on leave, or otherwise, the employer can, where reasonable, postpone or reschedule the hearing to accommodate the employee’s request. This shared approach ensures fairness while enabling practical and reasonable arrangements for all parties involved.

WHY FOLLOWING PROCEDURE PROTECTS YOU

Following procedure protects the employee’s rights and upholds your integrity as an employer.

This content is provided for general informational purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional labour law advice.

Kindly contact the Ivocate team at info@ivocate.co.za or WhatsApp us at 0764969446.