In the realm of South African labour law, procedural fairness is not merely a formality — it is a foundational requirement that upholds the integrity of workplace discipline.
A key aspect of this fairness is the right to Cross Examination, which allows employees to challenge the evidence presented against them during disciplinary hearings.
When factual disputes are central to a case, denying an employee the opportunity for Cross Examination of witnesses can render the entire process procedurally unfair, regardless of the case’s substantive merits.
The recent Labour Court decision in *Schouten v Safety and Security Sectoral Bargaining Council and Others* [2025] highlights the critical importance of preserving this right.
Procedural Fairness During Disciplinary Hearings
Procedural fairness is a fundamental principle enshrined in Schedule 8 of the Labour Relations Act, 66 of 1995, commonly referred to as the Code of Good Practice. This Code outlines the essential elements of a fair disciplinary process and underscores the importance of allowing an employee a reasonable opportunity to respond to allegations made against them.
Central to this principle is the employee’s right to be informed of the charges in a language they understand, the right to prepare and present a defence, and the right to be heard before any disciplinary action is taken.
Furthermore, procedural fairness includes the opportunity to face and question one’s accusers, which ensures transparency and guards against arbitrary or biased decision-making.
This right not only empowers the employee but also upholds the integrity of the disciplinary process, reinforcing a culture of fairness and accountability in the workplace.
Ultimately, adherence to procedural fairness as outlined in Schedule 8 is not merely a legal requirement but a cornerstone of ethical labour relations.
Case Study
In *Schouten v Safety and Security Sectoral Bargaining Council and Others* [2025], the applicant, a former SAPS officer, was dismissed for allegedly possessing stolen ammunition found in his locker and home. He denied the charges, claiming the evidence was fabricated.
At arbitration, the dismissal was found substantively fair based on SAPS’s evidence. However, the disciplinary process was procedurally flawed, as the employee was denied the right to cross-examine witnesses, despite the case hinging on contested facts.
The arbitrator wrongly upheld the process as fair, relying solely on written witness statements without allowing the employee to cross-examine his accusers, and by relying on a collective agreement that did not explicitly exclude cross-examination.
The Labour Court found this reasoning unreasonable, holding that fairness required the opportunity to confront accusers. As a result, the procedural unfairness of the disciplinary action warranted substantial compensation for the employee.
Conclusion
The right to a procedurally fair disciplinary hearing is a vital safeguard within South African labour law, ensuring that employees are not only treated lawfully but also justly.
As highlighted in *Schouten v Safety and Security Sectoral Bargaining Council and Others*, procedural fairness is compromised when an employee is denied the opportunity to cross-examine witnesses in cases involving disputed facts.
Such a denial strikes at the heart of a fair process and can render an otherwise substantively fair dismissal procedurally flawed.
The judgment reinforces that disciplinary hearings must do more than follow formal procedures, as they must embody the principles of fairness, transparency, and accountability.
Ensuring that employees can face and question their accusers is not simply a procedural technicality; it is a critical component of justice in the workplace.
