The principle of fairness is a cornerstone of labour legislation and workplace relations. Rooted in the country’s constitutional commitment to human dignity, equality, and social justice, the concept of fairness plays a vital role in ensuring balanced and equitable treatment of employees. This principle is particularly enshrined in two major pieces of legislation – the Labour Relations Act (LRA), No. 66 of 1995 and the Employment Equity Act (EEA), No. 55 of 1998.
Fair vs Unfair Conduct: What does the law say?
An unfair labour practice is defined in section 186(2) of the LRA as any unfair act or omission arising between an employer and employee, including:
- Unfair conduct relating to promotion, demotion, probation (excluding dismissal due to probation), training, or employee benefits;
- Unfair suspension or other unfair disciplinary action short of dismissal;
- A failure or refusal to reinstate or re-employ a former employee in terms of any agreement;
- Occupational detriment suffered by an employee for making a protected disclosure in terms of the Protected Disclosures Act 26 of 2000.
The two pillars of Fairness in labour law
a. Substantive Fairness
Substantive fairness relates to the validity and justification of an employer’s decision, especially when it comes to disciplinary actions or dismissal. In order to be substantively fair, the employer must have a real and legally acceptable reason for the action taken. Section 185 of the LRA guarantees every employee the right not to be unfairly dismissed or subjected to unfair labour practices.
Substantively fair dismissals may be based on misconduct, incapacity or poor performance, or operational requirements (such as retrenchments). If the employer’s reason for dismissal is not real, reasonable, or related to the employee’s conduct or the business’s operational needs, the dismissal may be deemed unfair, even if proper procedures were followed.
b. Procedural Fairness
Procedural fairness ensures that a fair process is followed before disciplinary action or dismissal is implemented. Key procedural requirements include:
- Informing the employee of the allegations
- Giving the employee an opportunity to respond
- Allowing representation at any disciplinary hearings
- Conducting a fair and unbiased inquiry
If a dismissal is for a valid reason but no hearing was held, it may still be found procedurally unfair.
According to section 140(2) of the LRA, failure to follow proper procedure may result in penalties, including an arbitration fee imposed by the Commission for Conciliation, Mediation, and Arbitration (CCMA).
Fairness under the Employment Equity Act (EEA)
The Employment Equity Act reinforces the principle of fairness by addressing discriminatory practices in employment. It prohibits unfair discrimination, directly or indirectly, on grounds based on race, gender, religion, disability, age or other grounds.
Furthermore, the EEA mandates equal pay for work of equal value, requiring employers to ensure that employees performing similar work receive equitable remuneration, unless justified by fair and objective criteria such as experience, qualifications, or performance.
Law@Work can assist you to comply with the concept of fairness in accordance with the legal framework.