Substantive Fairness

Substantive fairness refers to the reasons, the suitability and the appropriateness of the disciplinary action taken against an employee.

There are various forms of disciplinary action which differ in their degree of severity. An important principle concerning the principle of substantive fairness is that the punishment must be in line with the misconduct of the employee, i.e. it must be proportionate to the offence. If a lesser punishment would be more appropriate, the action was unfair. In practice, it means that a minor first offence such as being late for work only deserves light disciplinary action such as a verbal warning. A serious offence, such as assault or theft, for instance, deserves more serious action such as a final written warning or even dismissal.

Substantive fairness further relates to the substance and reason for dismissal. If the reason for the dismissal is not valid, then the dismissal is unfair.

According to the code of good practice in the labour relations act, whether a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. The employer must show that the reason for the dismissal is a reason related to the employees conduct or capacity or is based on the operational requirements of the business. If the employer fails to do that or fails to prove that the dismissal was executed in accordance with fair procedure, the dismissal is UNFAIR.

When dismissing the employee for misconduct, the employer needs to prove:

• That the employee contravened a rule or standard regulating conducts in, or relevant to, the workplace.
• That the rule was valid or reasonable.
• That the employee was aware or could reasonably have been expected to be aware of the rule or standard.
• That the employer has consistently applied the rule or standard.
• That the dismissal was an appropriate sanction for the contravention of the rule or standard.

Repeated offences could justify the final step of dismissal.

Dismissal for a first offence may be appropriate if the misconduct is very serious and makes the continued employment of that person intolerable.

Examples of serious misconduct are:

• Gross dishonesty (for example, theft)
• Deliberate damage to the property of the employer
• Deliberate endangering of the safety of others
• Physical assault of the employer, a fellow employee, client, or customer
• Gross insubordination (for example, swearing at a supervisor in front of other employees)

Each case should be judged on merit and the employer should also take other factors such as the following into account:

• The employee’s circumstances (e.g. length of service, earlier disciplinary record and personal circumstances)
• The nature of the job
• The circumstances of the infringement (e.g. if an employee was justifiably provoked to assault a colleague)