When an employee does something wrong, it is tempting to act immediately. But a dismissal can be found unfair even when the employee was clearly at fault, if the employer did not follow a fair process. This post is general information, not legal advice, and every case is different.
Two kinds of fairness
- Substantive fairness: was there a fair reason for the action, and was the sanction appropriate?
- Procedural fairness: did the employer follow a fair procedure before acting?
The basic steps
- Investigate. Find out what happened. Collect statements and evidence, and do not decide before you have the facts.
- Put the allegations in writing. Give the employee a clear notice of the charges and enough time to prepare, with details of the hearing.
- Hold a hearing. The employee can respond, call witnesses and be assisted as your policy allows. A chairperson who was not involved in the incident helps ensure fairness.
- Decide on a sanction. Consider the seriousness of the conduct, the employee's record and how you have treated others in similar cases.
- Communicate the outcome in writing and explain any right of appeal.
- Keep the record. Notices, minutes, evidence and the outcome should be in the personnel file.
Common mistakes
- Dismissing on the spot, or by WhatsApp.
- Having no written disciplinary code.
- Treating similar cases differently.
- Skipping the hearing because "everyone knows what happened".
If it goes to the CCMA
An employee who believes a dismissal was unfair can refer it to the CCMA, generally within a short time limit after the dismissal. Your records will be your best evidence, which is why good process and good documentation matter from the start.
If you are unsure, get procedural support before you act, not after.
This article is general information for South African small businesses and is not legal, tax or financial advice. Rules, fees and dates change, so confirm current requirements with the relevant authority or speak to us.