Substantive fairness in terms of the new CCMA guidelines: misconduct arbitrations

Feb 10, 2012


The CCMA guidelines for commissioners regarding misconduct arbitrations, effective from 1
January 2011, deal with how an arbitrator should conduct arbitration proceedings; evaluate
evidence for the purpose of making an award; assess the procedural fairness of a dismissal;
assess the substantive fairness of a dismissal; and determine the remedy for an unfair
dismissal. The guidelines supplement the provisions of the Code of Good Practice: Dismissal
(‘the Code’). The aim is to promote consistent decision-making in arbitrations dealing with
dismissals for misconduct.

This contribution deals with the issue of substantive fairness.

How is guilt determined?

The guidelines confirm the provisions of the Code provides as far as determining guilt is
concerned. Item 7 of the Code provides that the commissioner should consider whether or not –

  • the employee contravened a rule or standard regulating conduct in, or relevant to, the
  • if a rule or standard was contravened, whether
  • the rule was a valid or reasonable rule or standard;
  • the employee was aware, or could reasonably be aware of the rule or standard;
  • if the rule or standard has been consistently applied by the employer.

This entails a factual enquiry into the substantive fairness of a dismissal. Evidence (verbal or
documentary) or an admission from the employee is required to prove each of the elements
mentioned above. Employers will have a much easier time proving their case at arbitration if
they have written policies and codes in place regulating behaviour at the employer’s place of
business. These policies and codes must be readily available to all employees in a manner and
form easily accessible and understandable. By providing appropriate induction and orientation
training to all employees at the commencement of their employment, employers will have no
difficulty in proving employee awareness of their codes and policies. It is trite that the employer
should document steps taken against previous contraventions of the rule or standard by other
employees. This will provide proof of consistent application of the rule or standard.

How is a sanction determined?

Because the Code of Good Practice: Dismissal promotes progressive discipline, it distinguishes
between single acts of misconduct that may justify the sanction of dismissal and those that may
do so cumulatively. The Code identifies gross dishonesty, willful damage to property,
endangering the safety of others, assault and gross insubordination as examples of what may
constitute serious misconduct that may justify dismissal even in the event of a single
contravention. In general, the gravity of the contravention will determine the appropriate

The guidelines offer a very useful approach to the determination of an appropriate sanction.
This involves two enquiries. The first is an enquiry into the sanction as a response to the
contravention of the rule, i.e., relating to the gravity of the transgression, and the second is one
into the circumstances of that contravention.

To support a dismissal, the employer will have to lead evidence about the seriousness of the
misconduct: this should include evidence regarding the risk that the contravention posed to the
employer and, the risk of further instances of misconduct in the future and the impact thereof on
the employer’s business. The circumstances of the transgression, e.g., the fact that it was
planned, or that the employee failed to cooperate in investigations, as well as the cumulative
effect of the employee’s disciplinary record could be important aspects to highlight in evidence.
It will not be sufficient for an employer just to argue at the end of the case about the impact of
the transgression: actual evidence must be provided during the presentation of the employer’s

An interesting aspect of the guidelines is that it specifically uses the risk management analogy
as an aid to determine sanction. According to the guidelines, dismissal should not be seen as a
punishment, but as a rational response to risk management in the workplace. The employer
should therefore highlight why the employee’s circumstances, the nature of the position the
employee was appointed to, and the circumstance of the contravention justifies a sanction of
dismissal as a means of mitigating the risk of reoccurrence.

What role do an employee’s personal circumstances play in deciding on a sanction?

According to the guidelines, personal circumstances should be work related, e.g., long service, a
clean disciplinary record and a disability caused by an accident at work or the effect of dismissal
on an employee close to retirement. Issues such as the size of the employee’s family are not
work related and therefore carry little, if any weight.

However, aggravating circumstances may have the effect of justifying a more severe sanction
than one prescribed in the code or normally imposed by employers either generally or in the
sector, or may offset personal circumstances which may otherwise have justified a different
sanction. Employers should try and anticipate the various work-related mitigating factors the
employee will present at the disciplinary hearing (relating to the nature of the job, the
circumstances of the contravention and the employee being close to retirement age or length of

service and clean disciplinary record). If possible, the employers should attempt to offset the
employee’s mitigating factors when presenting its aggravating factors by highlighting the risk of
further instances of misconduct the employer might face if the employment relationship is

Barney Jordaan & Andrea de Jongh

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