How Rigidly Must An Employer Follow Fair-Procedure Before Discipling An Employee?
Article by: Roodepoort Attorney: LEON WOLLNIK
The Labour Court’s ruling in SAMWU obo Mvinjelwa v City of Tshwane Metropolitan Municipality underscores that procedural fairness is not about rigid compliance with every technical requirement but about ensuring genuine fairness in practice. The Court clarified that Schedule 8 of the Code of Good Practice serves as guidance rather than a strict checklist, and its purpose is to prevent unions from being excluded from disciplinary processes—not to shield shop stewards from accountability.
In this case, although the union was not notified immediately, the hearing was postponed, and the union had ample time to prepare and participate. The Court found that no prejudice resulted, and the consultation requirement was substantively fulfilled.
Equally important was the Court’s emphasis on substance over formality. Witness testimony corroborated the complainant’s account of the assault, and the Commissioner’s reliance on direct evidence was deemed reasonable under the Sidumo and Herholdt principles. The review application was dismissed, reinforcing that fairness is measured by outcomes rather than procedural perfection.
For employers, the judgment provides reassurance that good faith consultation and credible evidence will withstand review, even if minor procedural imperfections occur, while also warning that deliberate exclusion of unions will still render a process unfair. This balance between protection and accountability reflects the Court’s pragmatic approach: fairness must serve justice, not obstruct it.
For more information, please visit our website wollnikattorneys.co.za, email us at Send email or give us a call on 011 793-4367 or Business WhatsApp: 082 773 1053
