The issues surrounding substantive and procedural fairness come under scrutiny in relation to dismissal of employees without notice.

Therefore, according to the Employment Act, a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure. Article 4 of the I.L.O Convention No. 158 of 1982 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.

The locus classicus which sets out the principles of substantive and procedural fairness deliberated below is the case of PHIRINYANE V SPIE BATIGNOLLES 1995 BLR 1 (IC) where De Villiers J postulated that:-

PROCEDURAL FAIRNESS

“Procedural fairness in general terms refers to a disciplinary hearing that has to be held to afford the employee to state his or her defence”. This requirement is derived from the audi alterem partem rule that requires an employer to afford an employee the opportunity to be heard and state his defence. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary, in order to make
one's case properly.

SUBSTANTIVE FAIRNESS

For a dismissal to be substantively fair, the following elements should be apparent:-
1.    A valid reason for the dismissal. This means that there must be  sufficient proof, judged objectively, that the employee has in fact committed the alleged misconduct.

2.    The valid reason must be fair. This means that the dismissal must be justified according to the requirements of natural justice or of equity and reasonableness. Industrial court (Madimabe v. Vegepak Food Wholesalers (Pty) Ltd 1997 BLR 159 (IC) has held that dismissal is reasonable in the following cases, to mention but a few: assault on a co-employee or a senior in the workplace, theft from the employer, defrauding the employer. These are canvassed under S.26 (4) of the Employment Act as serious misconduct.

It is pertinent to note that there are exceptions to this general rule of natural justice that a fair disciplinary enquiry should precede a dismissal for misconduct. These are inclusive of:-
I.        Cases of emergency in which an employer may have to dismiss workers summarily in order to save lives or property e.g. rioting, striking workers attacking casual labourers. In such cases it can never reasonably be expected of an employer to first hold a disciplinary enquiry before dismissing such unruly workers.

II.        Cases of waiver, in which the conduct of the employee is such that it can in all fairness be said that he has waived or abandoned his right to a hearing, e.g. if he deserts or displays unruly behaviour or blatant abuse of the employer when the employer is trying to discuss, convene or hold a disciplinary enquiry.

III.        Thirdly, there may be cases where it cannot reasonably be expected of an employer in specific circumstances to hold a disciplinary enquiry before dismissing employees, e.g. employees who are striking illegally and who refuse to return to work after receiving a proper ultimatum may be dismissed without a disciplinary enquiry.

IV.        Where an employee pleads guilty to the alleged misconduct. An employer cannot in such cases dispense with a disciplinary enquiry altogether, he must give the employee an opportunity to place facts before him in mitigation.

The above examples are not exhaustive and there may be other examples of misconduct which the court, in its discretion, may hold, do not necessitate a disciplinary enquiry. The Industrial court has held that the following are cardinal
requirements for a fair disciplinary enquiry:

• The employee must be given reasonable notice of the time and place the employer intends holding a disciplinary enquiry.
• The employee must be informed of the nature of the charge or charges against him.
• The employee must be given the option of being assisted or represented at the enquiry by a co-employee of his choice.
• The employer should place sufficient evidence before the enquiry to prove that the alleged misconduct has been committed and that it has been committed by the employee so charged.
• If found guilty and after a sanction has been imposed, the employee should be informed of his right to appeal.
• The enquiry should be conducted in good faith.

Written by Keolebogile Mugabe, Associate, Head of Debt Collection, Minchin & Kelly Botswana, a member of DLA Piper Africa