The writes and wrongs of disciplinary hearings

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The answer depends on a few key legal principles, and South African labour law provides helpful guidance.

What the law says

If an employee’s employment contract or the employer’s disciplinary code specifically requires a traditional, in-person hearing, then the employer must follow that process. Deviating from it, such as by using written submissions instead, could amount to a breach of contract.

However, if there is no contractual obligation to hold a formal hearing, the employer has discretion to choose the process, as long as it is procedurally fair.

What is procedural fairness?

Procedural fairness is rooted in the principle of audi alteram partem – the right to be heard.

According to the Code of Good Practice: Dismissal (Schedule 8 of the Labour Relations Act), fairness requires:

• An investigation into the allegations.
  
• Notification to the employee of the charges.
  
• A reasonable opportunity to respond (with assistance if needed).
  
• Communication of the outcome.

Importantly, the Code does not require a formal, in-person hearing. It simply requires that the employee be given a fair chance to respond.

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Key case law

Several court cases have clarified this issue:

• Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) (LC): The court rejected the “criminal justice” model for workplace discipline. It emphasised that fairness does not require a trial-like process.
• The court in FAWU obo Kapesi & Others v Premier Foods t/a Blue Ribbon Salt River [2010] (LC) and NUM & Others v Billard Contractors CC & Another [2006] (LC) also endorsed the approach set out in the Avril Elizabeth case in relation to the degree of formality required in disciplinary procedures.
• Nitrophoska (Pty) Ltd v CCMA (2011) (LC): The court confirmed that requiring a criminal-style hearing places an unnecessary burden on employers.
• Broadcasting, Electronic, Media & Allied Workers Union and Others v South African Broadcasting Corporation and Others [2016] (LC): The Labour Court upheld a process based on written submissions, even though it differed from the employer’s usual practice, because it still met the fairness requirements.
• Lefatola and Another v City of Johannesburg and Another [2018] (LC): The court held that written submissions can be fair, especially if both parties are allowed to present their cases in the same format.
• Mathabathe v Nelson Mandela Bay Metropolitan Municipality and Another (2017) (LC): The court found that a hearing conducted via written submissions, with an independent chairperson, met the requirements of fairness, even if the employee disagreed with the outcome.

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When written submissions are acceptable

A disciplinary hearing can proceed by written submissions if:

• There is no contractual or policy requirement for a formal hearing.
• The employee is given a clear opportunity to respond.
• The process is fair, transparent, and consistent.
• The employee is not disadvantaged by literacy or language barriers.

When written submissions may not be enough

Written submissions may not be appropriate if:

• The disciplinary code or employment contract requires an oral hearing.
• The employee requests an oral hearing and has valid reasons (eg. low literacy).
• The matter is complex and requires oral evidence or cross-examination.

Final thoughts

South African labour law encourages flexibility in disciplinary processes. The focus is not on formality, but on fairness. If the employee is properly informed of the charges and given a fair chance to respond – whether in writing or in person, the process is likely to be upheld.

Employers should, however, be cautious: if they have adopted a more formal process in their policies or contracts, they must follow it. Otherwise, they can opt for a more streamlined approach, including written submissions, provided it meets the standards of procedural fairness.