Most employers focus their energy on proving why an employee was dismissed, be it for misconduct, incapacity or operational requirements. But at the CCMA and bargaining councils, cases are just as often lost on how the dismissal was carried out, not whether it was justified.
Procedural fairness under the Labour Relations Act and 4 September 2025 Code of Practice: Dismissal requires procedural compliance, it’s 50% of the fairness equation. Commissioners look for a genuinely impartial chairperson, adequate notice of the charges, a real opportunity for the employee to state their case, consistency with how similar past cases were handled, and a sanction proportionate to the offence. A single gap can be fatal to prospects in defending an alleged unfair dismissal, such as a chairperson who was involved in the initial investigation, a prolonged delay in initiating the disciplinary procedure, a notice period too short to prepare a defence, an inconsistent sanction compared to prior similar cases, can be, and often is, enough to overturn an otherwise justified dismissal.
The cost of that gap is real; reinstatement, backpay, legal fees, and management time diverted from the business. And because process failures often repeat across departments and line managers, one bad precedent can multiply risk across an entire organisation.
The fix isn’t more legal review after the fact — it’s building procedural discipline into the process itself from the beginning, before a dismissal ever happens. The 4 September 2025 Code of Practice: Dismissal emphasises the need for a “fair procedure”. In our experience, initial procedural defects are evident in many cases. Such defects cannot be un-done, and result in inevitable risk at CCMA, bargaining council and Labour Court level. Procedural unfairness is irreversible.
Our labour courts have dealt with procedural unfairness extensively. In Johnson & Johnson (Pty) Ltd v CWIU, Froneman DJP dealt with compensation for procedural unfairness – `The compensation for the wrong in failing to give effect to an employee’s right to fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an employer (who breached the right) must pay a… penalty for causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress”. In a recent LAC case also confirmed that “The key factors in the determination of compensation for procedural unfairness, therefore, are: i) the extent of the deviation from a fair procedure; ii) the employee’s conduct; iii) the employee’s length of service; and iv) the anxiety and hurt caused to the employee as a consequence of the employer not following a fair procedure”.