Let’s picture this:

Lerato, a team leader at a logistics company, discovers that one of her drivers, Thabo, has been late three times in one month. Frustrated, she decides to “set an example” and dismiss him immediately after a short hearing.

She followed the procedure — Thabo was informed of the charges, given a chance to explain, and the meeting was documented. Everything seemed by the book.

A week later, Thabo refers the case to the CCMA , and wins.

Lerato is shocked. How could that happen when she did everything right?

The missing piece: Substantive Fairness

Under South Africa’s Labour Relations Act (LRA) 66 of 1995, every dismissal must be both procedurally and substantively fair.

Procedural fairness is about how you handle the process.
Substantive fairness is about why you made the decision.

In Thabo’s case, while the process was correct, the reason wasn’t strong enough to justify dismissal. Three late arrivals ,with valid explanations, didn’t warrant termination.

What should Lerato have considered?

1. Valid reason for dismissal
Was the offence serious enough to justify dismissal?
Valid reasons typically include misconduct, incapacity, or operational requirements. Thabo’s lateness might be misconduct, but not severe enough for dismissal, a warning could have been more appropriate.

2. Consistency
Have others been dismissed for similar behaviour?
If other drivers were only warned, firing Thabo would be inconsistent — and therefore unfair.

3. Proportionality of the sanction
Does the punishment fit the offence?
Three late arrivals do not equal gross misconduct. Dismissal was disproportionate to the severity of the issue.

4. Evidence-based decision
Was the decision backed by proof?
Lerato needed proper time records, evidence of impact on operations, and proof that Thabo had no valid reason — not just frustration or assumption.

5. Consideration of circumstances
Did she look at Thabo’s record and context?
He had worked five years without a single warning. A fair employer would consider that before deciding on dismissal.

The outcome

Because the company failed to prove that there was a valid and fair reason for dismissal, the CCMA ruled in Thabo’s favour.
The company had to pay compensation and Lerato learned an important lesson about substantive fairness.

The bigger picture

Substantive fairness protects employees from arbitrary or emotional decisions, and it helps employers act within the law, making sure every disciplinary action stands up to scrutiny.

Even when procedures are perfect, if the reason isn’t fair or supported by evidence, the dismissal will still be found unfair.

How WHM Labour Law Advisors can help

At WHM Labour Law Advisors, we guide employers through every step of the disciplinary process, ensuring both procedural and substantive fairness.

We help you make decisions that are legally sound, well-documented, and ethically justified, so you can maintain compliance and protect your organisation from costly disputes.

Because fairness isn’t just about following rules,
it’s about doing what’s right and reasonable.

– K. Leballo