Page 275 - DMGT519_Conflict Management and Negotiation Skills

Unit 13: Fairness and Trust in Negotiation

are charged and the state's substantive laws. For example, for a felony driving while intoxicated Notes
charge, most states require prosecutors to prove that:
1. You were driving or operating a motor vehicle;

2. On a public roadway;
3. While you were intoxicated;
4. And that you have prior convictions for driving while intoxicated.

13.3 Procedural and Substantive Fairness at Disciplinary Hearings

It happens much too often that a dismissed employee approaches the CCMA and such employee
bases his/her claim on the allegation that his/her dismissal was procedurally and substantively
unfair. All too often it happens that the Commissioner finds in favour of the employee, either on
the ground that the employer has failed to follow a fair procedure prior to and during dismissal,
or on the ground that the employer has dismissed the employee on insufficient evidence, or
sometimes even on both these grounds.
Section 188 of the Labour Relations Act stipulates that a dismissal is unfair if the employer fails
to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity
of the employee, or is based on the employer's operational requirements, and that the dismissal
was effected in accordance with a fair procedure.

Once it is found that the employee was dismissal was unfair, the Commissioner may order
reinstatement with an order to pay the employee's salary for the period of dismissal, or the
Commissioner may order that the employer pays the employee compensation, which can be
equal to 2 (two) years salary in certain circumstances.
Employers and chairpersons of disciplinary hearings must take note that procedural fairness
will depend largely on the question whether a disciplinary hearing was held, and whether such
hearing was conducted fairly.
Sometimes employers have their own disciplinary code and procedures. Employers are advised
to draft their own disciplinary codes, and should obtain expert legal advice in drafting these
codes and procedures.

In the event that the employer does not have its own disciplinary code, then the employer
should follow the procedures set out on the relevant Codes of Good Practice of the Labour
Relations Act. Every industry is governed by its own Codes of Good Practice, and employers
should take care to know these Codes.
Schedule 8 deals with the procedural elements of a disciplinary hearing. The employer is required
to investigate the matter and decide whether there exists sufficient grounds for disciplinary
action and dismissal. If the employer is of the opinion that sufficient grounds exist for a dismissal,
the employee should be informed in writing, in a language that he can reasonably understand,
of the allegations against him/her. The employee should further be afforded a reasonable time
(at least 2 clear days minimum) to prepare for his defence, and the employee is further entitled
to be represented by his trade union of a fellow employee. After the enquiry the employee
should be informed in writing of the verdict, and in the event of a dismissal, the reasons for said
dismissal, in which instance the employee should be reminded that he/she may refer the matter
to a council with jurisdiction or to the CCMA or to any dispute resolution procedures established
in terms of a collective agreement.
Once the employer has complied with the above requirements, in addition to having afforded
the employee the opportunity to state his case and defend himself, the disciplinary hearing
ought to be regarded as being fair.

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