South Africa: CCMA Guidelines On Misconduct Arbitrations: Part 3

Last Updated: 15 February 2012
Article by Alex Ferreira and Louietta Du Toit
Most Read Contributor in South Africa, September 2019

This is the third article in a series of articles meant to advise litigants who may have to arbitrate before the CCMA after 1 January 2012, in the face of the new "Guidelines on Misconduct Arbitrations" ("the Guidelines") which were published by the CCMA during September 2011 and which became effective on 1 January 2012.

The purpose of this article is to examine those sections of the Guidelines which advise arbitrators on how to approach and assess the concept of procedural fairness in arbitration proceedings relating to misconduct.

Procedural fairness is a flexible concept, and the determination of procedural fairness will ultimately depend on the particular standard against which it is measured. The Guidelines deal with the various possible standards and approaches which may apply in different cases, which are discussed more comprehensively below.

The requirements of the code of good practice

If there is no prescribed disciplinary procedure in a workplace, arbitrators must approach procedural fairness in line with the requirements of the Code of Good Practice: Dismissal ("the Code"), and particularly Item 4 thereof, which sets out the general principles of a fair procedure.

The Code envisages a flexible approach regarding an investigation and enquiry relating to misconduct and does not prescribe a formal procedure akin to a criminal hearing. Accordingly, it is this inherently informal and flexible basis upon which procedural fairness should be assessed. Departures from the relevant requirements of the Code (listed below) should be justified and are only permissible in exceptional circumstances: for example, in order to protect lives and property, or if the employee refuses to state his or her case in response.

The arbitrator should summarise and assess the relevant facts of the matter in relation to the following requirements, as set out in Item 4 of the Code:

  • The employer must notify the employee of the allegations of misconduct using a form and a language that the employee can reasonably understand. Such notification may be oral or in writing. The fairness of the notice should be determined by testing whether it is clear and comprehensible enough to reasonably enable the employee to state a case in response. For example, it would be unfair to state the charges of misconduct in vague and generic terms which do not sufficiently inform the employee of the basis upon which to prepare his or her defence.

  • The employee should be allowed a reasonable time to prepare a response to the allegations. A "reasonable time" depends on the particular circumstances – the complexity of the allegations and the nature of the factual issues involved. The Guidelines provide that, in most cases, it would be unreasonable to give an employee less than a day to prepare his defence.

  • The employee should be allowed the assistance of a trade union representative or fellow employee in preparing a response and in stating a case in any enquiry. However, a trade union representative may only assist an employee if the particular trade union has been granted the necessary organisational rights in the workplace. It should also be stressed that the Code does not recognise an automatic right to legal representation.

  • The employee should be given the opportunity to state a case in response, either orally or in writing. As stated above, this does not necessarily entail a formal hearing. The determining factor throughout is that the employee was given a proper opportunity to state his or her case in response. The person who hears the case is irrelevant in this regard and an employer may use an external third party to conduct the hearing.

  • After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. An employer should also remind a dismissed employee of the right to refer an unfair dismissal dispute, either to the CCMA, a bargaining council having jurisdiction, or in terms of any dispute resolution procedure in a collective agreement, if applicable.

Should an arbitrator, after testing the actual procedure followed against the abovementioned procedural requirements of the Code, find that the procedure was in any way defective, he should then determine whether the particular defect was material. The severity of the defect becomes relevant when determining the extent of compensation to be awarded for procedural unfairness.

The requirements if there is a workplace disciplinary procedure

If there is a prescribed disciplinary procedure in a workplace, then arbitrators must have regard to such procedure. There are, however, circumstances in which the Code may still be applied.

There are three possible categories, or sources, of workplace disciplinary procedures. These categories differ in respect of their legal status, which should direct the arbitrator's approach in assessing procedural fairness.

If disciplinary procedures are contained in a collective agreement, the Code may only be invoked in relation to issues which are not addressed in the particular collective agreement. All other aspects of the disciplinary process must be tested against the collectively agreed procedure, and not the Code, when assessing procedural fairness. The Guidelines provide that an arbitrator should only make a finding of procedural unfairness if it can be found that the actual procedure followed resulted in unfairness. This presumably means that the mere deviation from an established procedure should not, in itself, translate into procedural fairness: the test is whether that deviation actually resulted in any unfairness.

Contractually binding procedures and procedures unilaterally imposed by the employer, however, are lower in status than, and must be tested against, the Code, and the Code must be given preference in the event of a conflict, unless the employer can justify a departure from the Code. A contractually binding procedure must be given preference over the Code, however, if it imposes a greater burden on the employer. Whichever procedure is more favourable to the employee must accordingly be followed.

Although a departure from a contractually binding procedure would generally constitute procedural unfairness, the Guidelines state that not every instance of procedural unfairness ought to lead to an order of compensation. The materiality of the breach, and the prejudice to the employee, will be relevant factors in determining compensation.

Disciplinary procedures which are unilaterally imposed by the employer are not legally binding on the employee and should, therefore, not be strictly interpreted and applied. It follows that a departure from these procedures, or an adjustment of an employer's disciplinary policy for the purpose of addressing unforeseen circumstances, should not automatically result in a finding of procedural unfairness, unless there is resulting material prejudice to the employee.

Where a workplace procedure provides for the right to representation, an employer's decision on whether or not to allow an employee representation should be evaluated in terms of such procedure. Although legal representation is not automatic, the Guidelines state that legal representation should be afforded if the particular procedure permits it.

Disciplinary action against trade union representatives

In the interest of maintaining amicable ongoing industrial relations between employers and trade unions, an employer must inform and consult with the relevant trade union before taking disciplinary action against an employee who is a representative, office bearer or official of that trade union. If there is no agreed consultation procedure, a procedure should be adopted which the employees and the trade union will both perceive as being fair and objective.

An employer may, however, depart from this procedure for good reason, but only if this does not result in any prejudice to the trade union and the trade union representative.

The above requirement imposes an additional procedural burden on the employer, but applies only to trade union representatives, office bearers and officials of a trade union which is legally recognised in the particular workplace. Unrecognised trade unions, therefore, do not enjoy this right.


Arbitrators are obliged to take the Guidelines into account and parties are, accordingly advised to be mindful of the Guidelines in relation to the manner in which an arbitrator assesses procedural fairness during the course of a particular matter.

The Guidelines specifically outline the different possible standards and/or instruments against which procedural fairness must be tested (i.e. the Code and the different possible workplace procedures) and in which circumstances the respective standards are applicable. It is therefore crucial to be mindful of the Guidelines in order to determine, firstly, whether an arbitrator assessed the procedure in accordance with the correct standard and, secondly, whether the arbitrator applied such standard correctly in the determination of procedural fairness.

By assessing an arbitration award with reference to the Guidelines, a party may be able to more easily prove that the arbitrator exceeded his powers, committed misconduct in relation to his duties and/or committed a gross irregularity in the conduct of the proceedings. In terms of Section 145 of the LRA, such grounds might constitute a defect in the arbitration proceedings, rendering the arbitration award reviewable.

With this in mind, the Guidelines should serve as an essential and practical yardstick against which to measure the assessment of procedural fairness by arbitrators, after 1 January 2012.

*This is the third article in a series of articles on the new CCMA Guidelines for Misconduct Arbitrations. For the first article please see this article, and for the second see this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions