What Makes a Disciplinary Hearing Unfair? | Key Factors Explained

A disciplinary hearing is unfair in South African labour law when it fails either the procedural fairness test under Schedule 8 of the Labour Relations Act 66 of 1995 (the Code of Good Practice: Dismissal) or the substantive fairness test in section 188 of the LRA (whether the dismissal was for a fair reason related to conduct, capacity, or operational requirements and was substantively appropriate). Procedural unfairness typically arises from defects in the investigation, the notice of the allegations, the right to be heard, the right to representation, or the impartiality of the chairperson; substantive unfairness arises where the misconduct is not made out or the sanction of dismissal is disproportionate to the offence. An employee who believes their hearing was unfair can refer the dispute to the CCMA within 30 days of the date of dismissal, or to the Labour Court in the case of an automatically unfair dismissal under section 187.

Procedural vs Substantive Fairness — Two Separate Tests

The Labour Relations Act 66 of 1995 separates procedural and substantive fairness, and an employer can win on one and still lose on the other. The two tests are independent: a procedurally perfect hearing will still produce an unfair dismissal if the employer cannot prove the misconduct on a balance of probabilities, and a substantively justified dismissal can still be set aside if the procedure was defective.

Test	What it asks	Source
Substantive fairness	Did the misconduct actually occur, and was dismissal an appropriate sanction in the circumstances?	Section 188(a) of the LRA
Procedural fairness	Did the employer follow a fair procedure before dismissing?	Schedule 8 (Code of Good Practice: Dismissal), item 7

A finding of procedural unfairness alone can sustain an unfair-dismissal claim and lead to reinstatement or compensation under section 194 of the LRA. For employees who think the process was rough but the outcome honest, the test is still procedural — the two questions are answered separately, and either one is enough to win at the CCMA.

The Procedural Requirements Under Schedule 8

Schedule 8 sets out the minimum procedural standards the employer must follow for any dismissal for misconduct. Item 7 lists the procedural requirements that the Code of Good Practice treats as fair. Failing any one of them — even where the charge itself is substantively well-founded — can render the dismissal unfair.

Investigation Before the Hearing

The employer must investigate the alleged misconduct before convening a disciplinary hearing, not rely solely on the employee’s denial at the hearing. A proper investigation means gathering evidence, taking statements from witnesses, considering the employee’s version, and forming a view that there is a prima facie case to answer before the hearing is convened.

Clear Notice of the Allegations

The employee must receive written notice of the date, time, and place of the hearing, with sufficient detail of the charges and the right to be heard. A vague or generic charge sheet that does not tell the employee what is alleged, when it is alleged to have happened, and what rule is alleged to have been breached is a procedural defect on its own.

Reasonable Opportunity to Prepare and Respond

The notice period must give the employee time to obtain representation, prepare a defence, and gather evidence. What counts as “reasonable” depends on the complexity of the matter; a serious charge with documentary evidence will require more notice than a straightforward misconduct allegation.

The Right to Be Heard (Audi Alteram Partem)

The employee must be allowed to state their own case, lead evidence, call witnesses, and cross-examine the employer’s witnesses. The audi alteram partem principle — “hear the other side” — is the foundation of procedural fairness, and a chairperson who cuts off the employee’s defence, refuses to allow evidence, or prevents cross-examination is presiding over a procedurally unfair hearing regardless of the merits.

Representation

A trade union representative or fellow employee may attend; an employer may refuse legal representation only where the refusal itself is fair in the circumstances. The right to a trade union official or fellow employee is automatic. Whether legal representation is permitted depends on the seriousness and complexity of the matter, and an outright refusal can itself be a procedural defect.

An Impartial Chairperson

The person presiding must not have pre-judged the outcome, must not be the complainant or a key witness, and must apply the standard of balance on the probabilities. A chairperson who has championed the case against the employee, who is the line manager who initiated the charge, or who has a personal interest in the outcome cannot preside impartially. A reasonable apprehension of bias is enough to disqualify the chairperson — actual bias does not have to be proved.

A Proportionate Sanction

Even where misconduct is proved, dismissal must be an appropriate response; progressive discipline is typically expected for less serious misconduct. A first offence of minor misconduct, or long service without prior warnings, will usually call for a written warning rather than dismissal, and the employer must explain why it has chosen dismissal in such cases.

Substantive Fairness — When Misconduct Itself Is in Dispute

The employer must show that the employee committed the alleged misconduct on a balance of probabilities. That is a lower standard than the criminal “beyond reasonable doubt” threshold, but the employer still must put up proper evidence and the chairperson must weigh it on its merits rather than simply accepting the manager’s account.

Common substantive failures include:

• Charging the wrong conduct — the employee may have done something wrong, but not what was alleged in the charge sheet.
• Relying on hearsay without corroboration — second-hand reports of events the witness did not personally observe are weak evidence, especially when the misconduct is serious enough to justify dismissal.
• Ignoring contradictions in the employer’s own evidence — if two of the employer’s witnesses give materially different accounts, the employer has not discharged the onus.
• Failing to consider mitigating factors — long service, an unblemished disciplinary record, a genuine apology, personal circumstances, and provocation are all relevant to the sanction, even where the misconduct is made out.

Even where misconduct is established, the sanction of dismissal can be substantively unfair if it is disproportionate — for example, a first offence of minor misconduct, long service without prior warnings, or triggering events linked to an automatically unfair dismissal ground. The proportionality enquiry is part of the substantive fairness test, not a separate exercise.

Warning Letters and Their Role

Written warnings form part of the progressive-discipline process; they typically carry a 6- to 12-month validity window but the period must be reasonable. A warning that is “active” for an unreasonably long period can itself be challenged, as can a warning that is so vague the employee cannot know what conduct it admonished.

A disciplinary hearing can proceed without prior warnings only where the misconduct is so serious that dismissal on a first offence is justified — summary dismissal under common law for acts such as gross dishonesty, assault, or gross insubordination. Such cases are exceptional, and the employer must show why the conduct justified dismissal on a first offence, not merely that it justified some form of discipline.

Failure to follow the warning sequence where the misconduct does not warrant summary dismissal is itself a procedural defect. If a verbal warning would ordinarily have been the proportionate response, a dismissal without prior warnings will be set aside as substantively unfair.

Common Reasons Employees Lose at the CCMA Anyway

Even employees who have a fair case on the merits can lose at the CCMA for reasons that have nothing to do with the substance of the disciplinary hearing. The CCMA is a creature of statute, and procedural missteps along the way to the arbitration can derail a strong claim.

Pitfall	What goes wrong
Late referral	The unfair-dismissal dispute must be referred to the CCMA within 30 days of the date of dismissal under section 191 of the LRA; late referrals require condonation and the employee must show good cause.
Failing to participate in the hearing	Squandering the right to be heard is treated by commissioners as undermining the very remedy the employee now seeks.
Treating the CCMA as a re-hearing	The CCMA reviews the fairness of the original process and decision, it does not start the disciplinary case from scratch.
Unrepresented employees losing on technical points	The CCMA process is less formal than a court but employees regularly lose on points of evidence and procedure they could have addressed with representation.

Burger Huyser Attorneys’ labour-law work is set up around exactly these failure points — getting the record straight at the internal stage, lodging the CCMA referral in time, and ensuring the case is framed properly before the commissioner.

Remedies If the Hearing Is Found Unfair

Where the CCMA or the Labour Court finds a dismissal unfair, section 194 of the LRA sets out the remedies available. The commissioner decides which remedy is appropriate based on the facts; compensation is the most common outcome where reinstatement is not practicable.

Remedy	What it means	Source
Reinstatement	The employee is restored to their previous position with back pay.	Section 194(1)(a)
Re-employment	The employee is offered a comparable position where reinstatement is not practicable.	Section 194(1)(b)
Compensation (ordinary unfair dismissal)	Capped at 12 months’ remuneration.	Section 194(1)(c)
Compensation (automatically unfair dismissal)	Up to 24 months’ remuneration, with no qualifying service requirement.	Section 194(4)

Frequently Asked Questions

What makes a disciplinary hearing procedurally unfair?

A disciplinary hearing is procedurally unfair under Schedule 8 of the Labour Relations Act when the employer fails to investigate the misconduct beforehand, does not give proper written notice of the allegations and the hearing date, refuses the employee a reasonable opportunity to prepare, denies the employee the right to be heard or to call witnesses, blocks lawful representation, or allows an interested party to chair the hearing. Any one of these defects is enough on its own to support a finding of procedural unfairness, even where the misconduct itself is made out.

Does an employee have the right to a lawyer at a disciplinary hearing?

An employee has the right to be represented by a trade union official or a fellow employee at the disciplinary hearing. Whether legal representation is permitted is at the chairperson’s discretion and depends on the complexity of the matter and the balance of fairness; an outright refusal of legal representation can itself be a procedural defect if the disciplinary enquiry is sufficiently serious or complex that the employee would otherwise be materially disadvantaged.

How long does an employee have to challenge an unfair dismissal?

An unfair-dismissal dispute must be referred to the CCMA within 30 days of the date of dismissal under section 191 of the Labour Relations Act. Late referrals are possible but require an application for condonation backed by a full explanation for the delay and the prospect of success on the merits; the CCMA applies the test from the leading case law strictly and condonation is not automatic.

Can a disciplinary hearing be unfair even if the employee was guilty?

Yes. Substantive and procedural fairness are separate tests under the LRA. Even where the employee committed the misconduct, a procedural defect — for example, no proper investigation, denial of the right to respond, or an interested chairperson — can render the dismissal procedurally unfair and entitle the employee to reinstatement or compensation.

What is the difference between an unfair dismissal and an automatically unfair dismissal?

An ordinary unfair dismissal under section 188 of the LRA is one without a fair reason or a fair procedure, capped at 12 months’ compensation. An automatically unfair dismissal under section 187 of the LRA arises where the dismissal is linked to a protected ground (such as participation in a protected strike, exercising a right under the Act, disclosing information protected by the Protected Disclosures Act, or discrimination on a listed ground) and carries a higher compensation cap of up to 24 months and no qualifying service requirement.

What should an employee do if they believe their disciplinary hearing was unfair?

Start by getting the full record — the written charge sheet, the notice of hearing, any minutes, and the outcome letter. Lodge a grievance through any internal appeal procedure the employer offers, in parallel with consulting a labour-law practitioner about a CCMA referral. Time is short: the 30-day referral clock under section 191 of the LRA runs from the date of dismissal, not from the date of the hearing, so do not wait until the appeal outcome is in before taking legal advice.

If a disciplinary hearing has left you unsure whether you were treated fairly, Burger Huyser Attorneys’ Labour Law practice can review the record, advise on prospects, and represent you at the internal hearing or in a CCMA referral. Marius Ferreira, the firm’s Labour Law consultant, handles instructions from both employees and employers; the firm practises from Linden, Randburg (011 888 0246) and across its Gauteng branches. Get in touch early — the 30-day CCMA referral window under section 191 of the LRA is strict, and condonation is not automatic.