Procedural Fairness in Dismissals for Poor Work Performance Under South African Labour Law

Dismissals for poor work performance remain a persistent source of dispute in South African labour law, particularly where employees challenge the procedural fairness of such terminations. While employers are entitled to set and enforce reasonable performance standards, employees are constitutionally and statutorily protected against unfair dismissal. This article examines whether the current South African labour law framework adequately protects the employees’ rights to procedural fairness when dismissal is based on poor work performance. With the use of a doctrinal research methodology, this article analyses the constitutional foundation of fair labour practices, the relevant provisions of the Labour Relations Act 66 of 1995, and leading judicial decisions interpreting procedural fairness in incapacity-related dismissals. It argues that South African labour law adopts a deliberately flexible approach to procedural fairness, emphasising substance over rigid procedural formality. However, this flexibility has resulted in inconsistent application by employers and dispute-resolution bodies, potentially undermining legal certainty and employee protection. The article argues that while current laws generally balance employer and employee rights, defining clearer minimum procedures would enhance fairness and predictability in performance-related dismissals.

1. Introduction

Dismissal constitutes the most severe sanction an employer may impose on an employee and often carries consequences that extend beyond the loss of income, including reputational harm and long-term economic insecurity. In South Africa’s constitutional order, labour law plays a critical role in regulating the unequal power relationship that characterises the employment relationship. Central to this regulatory framework is the right not to be unfairly dismissed, which seeks to ensure that decisions affecting an employee’s livelihood are made in a manner that is both justifiable and fair.

Dismissals based on poor work performance occupy a particularly complex area within dismissal law. Unlike misconduct, which is generally associated with blameworthy or wilful conduct, poor performance usually arises from incapacity, lack of skill, or inadequate training. For this reason, South African labour law does not treat poor performance as a disciplinary failing but rather as a situation requiring assessment, guidance, and support. The procedural obligations imposed on employers in such cases are therefore fundamentally different from those applicable to misconduct dismissals.

The constitutional right to fair labour practices is protected by section 23(1) of the Constitution of the Republic of South Africa, 1996. It is given legislative effect through the Labour Relations Act 66 of 1995 (LRA). Section 188 of the LRA requires that all dismissals be both substantively and procedurally fair, while Schedule 8, the Code of Good Practice: Dismissal, provides specific guidance on dismissals for incapacity and poor work performance. Despite this framework, disputes concerning the procedural fairness of performance-based dismissals continue to feature prominently before the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Courts.

This article examines the extent to which South African labour law adequately protects employees’ rights to procedural fairness in dismissals for poor work performance. It argues that while the law has intentionally moved away from rigid procedural formalism in favour of a flexible, context-sensitive approach, the inconsistent application of procedural standards has the potential to undermine legal certainty and employee protection. The article proceeds by outlining the applicable legal framework and relevant scholarly commentary before critically analysing judicial interpretation and application of procedural fairness in performance-related dismissals.

2. Legal Framework 

2.1 Constitutional Foundation of Procedural Fairness 

The constitutional basis for procedural fairness in dismissal disputes is found in section 23(1) of the Constitution of the Republic of South Africa, 1996, which guarantees everyone the right to fair labour practices. This provision serves as the normative foundation for South African labour law and informs the interpretation of all legislation regulating employment relationships. The Constitutional Court has consistently affirmed that labour rights must be interpreted in a manner that promotes dignity, equality, and social justice. 

Procedural fairness, as an aspect of fair labour practices, requires that employees to be treated in a manner that respects their right to be heard and to be dealt with fairly before decisions adversely affecting their employment are taken. Although the Constitution does not prescribe specific procedural requirements, it establishes a standard of fairness against which employer conduct must be measured.

2.2 Statutory Regulation under the Labour Relations Act

The Labour Relations Act 66 of 1995 gives effect to the constitutional right to fair labour practices. Section 188 provides that a dismissal is unfair unless the employer proves that it was effected for a fair reason related to the employee’s conduct, capacity, or operational requirements, and that it was carried out in accordance with a fair procedure. Once the existence of a dismissal is established, section 192 places the burden on the employer to prove its fairness.

Schedule 8 to the LRA, the Code of Good Practice: Dismissal, offers guidance on the application of these principles. In cases of poor work performance, item 8 of the Code requires employers to assess whether the employee failed to meet the required performance standard, to make the employee aware of the shortcomings, to provide appropriate guidance, training, or counselling, and to allow a reasonable opportunity for improvement before dismissal is considered. The Code clearly acknowledges that termination due to inadequate performance should typically be a last resort. 

Importantly, the Code does not impose rigid procedural steps or formal hearings. Instead, it promotes flexibility and fairness, allowing procedures to be adapted to the circumstances of each case. This reflects a conscious legislative choice to avoid excessive formalism while still safeguarding employees against arbitrary dismissal.

2.3 Judicial Interpretation and Academic Commentary

South African courts have repeatedly emphasised that procedural fairness should not be equated with technical compliance or elaborate formalities. In the case Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration, the Labour Court held that the LRA does not require disciplinary hearings to to resemble criminal trials. Rather, procedural fairness requires that the employee be informed of the employer’s concerns and be afforded a fair opportunity to respond. This decision marked a significant departure from pre-1995 labour law formalism.

The Constitutional Court has reinforced this approach in subsequent decisions. In Sidumo v Rustenburg Platinum Mines Ltd, the Court stressed that fairness in dismissal disputes requires a balanced assessment of all relevant circumstances, informed by constitutional values. Although the case Sidumo focused primarily on substantive fairness, its reasoning has influenced procedural fairness analysis by its emphasis on  context and proportionality.

Academic commentators largely support this flexible conception of procedural fairness. Grogan argues that poor performance dismissals should be approached as part of an ongoing performance management process rather than a once-off disciplinary event. However, scholars have also cautioned that excessive flexibility may lead to inconsistency and uncertainty, particularly in CCMA decision-making. This tension between flexibility and legal certainty remains central to debates on procedural fairness in poor performance dismissals.

3. Analysis

3.1 Poor Work Performance as Incapacity Rather Than Misconduct

A consistent theme in South African labour jurisprudence is the clear distinction drawn between misconduct and poor work performance. This distinction is not merely academic; it shapes the procedural responsibilities mandated for employers. Misconduct implies blameworthy conduct and justifies a disciplinary process aimed at establishing culpability. Poor work performance, by contrast, is generally treated as a form of incapacity, arising from a lack of skill, experience, or ability rather than wilful wrongdoing. 

Schedule 8 of the Labour Relations Act reflects this distinction by requiring employers to adopt a corrective and supportive approach when dealing with performance shortcomings. Where an employer treats poor performance as misconduct and subjects the employee to a disciplinary hearing without first offering assistance or guidance, the dismissal is likely to be procedurally unfair. The law therefore demands that employers first attempt to address the underlying causes of inadequate performance before resorting to termination.

3.2 Content of Procedural Fairness in Performance Dismissals

The content of procedural fairness in poor performance dismissals is shaped by section 188 of the LRA and item 8 of Schedule 8. These provisions do not prescribe a rigid checklist but they outline minimum expectations. At a basic level, procedural fairness requires that the employee be made aware of the required performance standard, informed of the areas in which their performance is deficient, and given a reasonable opportunity to improve.

Applying the IRAC method, the central issue in most performance dismissal disputes is whether the employer followed a fair and reasonable process before dismissal. The applicable rule is that failure to engage meaningfully with the employee, provide assistance, or allow time for improvement will generally render the dismissal procedurally unfair. The analysis therefore focuses on the quality of the employer’s engagement rather than the presence of formal procedures.

In Avril Elizabeth Home for the Mentally Handicapped v CCMA, the Labour Court rejected the notion that procedural fairness requires a formal hearing resembling a criminal trial. Instead, the court emphasised that fairness requires an opportunity for the employee to respond to concerns and participate meaningfully in the process. This approach recognises the practical realities of the workplace while preserving the employee’s right to be heard.

3.3 Judicial Emphasis on Context and Substantive Fairness

The Constitutional Court has reinforced the view that procedural fairness cannot be assessed in isolation from the broader context of the employment relationship. In Sidumo v Rustenburg Platinum Mines Ltd, the Court held that fairness requires consideration of all relevant circumstances, including the employee’s personal situation, length of service, and the impact of dismissal. Although the case dealt primarily with substantive fairness, its reasoning has influenced procedural assessments by discouraging rigid, technical approaches.

Similarly, in Edcon Ltd v Pillemer NO, the Constitutional Court criticised an overly formalistic approach to dismissal disputes and emphasised that fairness demands a holistic evaluation of the employer’s conduct. The Court highlighted that an employer’s failure to consider alternatives to dismissal or to engage constructively with the employee may render the process unfair, even where some procedural steps were followed.

These legal decisions highlight that procedural fairness goes beyond mere administrative compliance. Instead, it necessitates a sincere effort by employers to manage performance issues through a process that is reasonable, open, and respects the employee’s dignity.

3.4 Inconsistency and the Risk of Uncertainty 

Despite the principled framework developed by the courts, the application of procedural fairness standards in poor performance cases remains inconsistent, especially at the CCMA level. Some commissioners require detailed performance improvement plans, written warnings, and formal meetings, while others accept informal counselling and verbal feedback as sufficient. This inconsistency creates uncertainty for both employers and employees and may undermine confidence in the dispute resolution system.

From an employee’s perspective, excessive flexibility may weaken protection by allowing employers to justify dismissals on the basis of minimal engagement. From an employer’s perspective, uncertainty regarding procedural expectations may expose them to adverse findings despite genuine efforts to manage performance. The challenge in this lies in balancing flexibility with  predictability.

Academic commentators have noted that while the rejection of rigid formalism is desirable, the absence of clearly articulated minimum standards may lead to arbitrary outcomes. A degree of structure, even if non-prescriptive, may enhance consistency without imposing undue burdens on employers.

3.5 Evaluating the Adequacy of Employee Protection 

The question arises whether the current South African approach adequately protects employees’ rights to procedural fairness in performance dismissals. On the one hand, the law clearly recognises the need for a supportive and rehabilitative process and rejects punitive disciplinary models. On the other hand, the lack of clarity regarding minimum procedural requirements may leave employees vulnerable to inconsistent application.

While the flexible approach aligns with constitutional values and workplace realities, it places significant discretion in the hands of employers and adjudicators. Without clearer guidance, there is a risk that procedural fairness may be reduced to a subjective assessment rather than a principled standard. This suggests that while the framework is conceptually sound, its practical implementation may require refinement.

Comparative Perspective: The United Kingdom 

In the United Kingdom, dismissals for poor performance are regulated primarily by the Employment Rights Act 1996. Under this framework, an employee may be fairly dismissed for reasons relating to capability, which includes skill, aptitude, health, or any other physical or mental quality relevant to job performance. Procedural fairness is further guided by the ACAS Code of Practice on Disciplinary and Grievance Procedures. While the Code is not legally binding, employment tribunals may take non-compliance into account and adjust compensation accordingly.

The ACAS Code places significant emphasis on structured performance management. Employers are expected to inform employees clearly of performance concerns, set measurable improvement targets, provide reasonable support, and review progress over time before dismissal is considered. Different from the South African approach, the UK framework places greater emphasis on written warnings and documented performance improvement processes. This promotes consistency and predictability but may impose a heavier procedural burden on the employers. 

In contrast, South African labour law deliberately avoids hard  procedural prescriptions. The emphasis is placed on fairness in substance rather than adherence to formal steps. While this flexibility accommodates diverse workplace contexts and resource constraints, it also contributes to inconsistent application.

Findings and Observations 

So what can we take away from all this? Well, first off, it’s clear that procedural fairness is a big deal in South African law when it comes to firing someone for poor performance. The Constitution and Labour Relations Act are pretty clear on that. Secondly, the law gets that poor performance is different from misconduct, and we should be looking to help people improve rather than just punishing them. The courts also like a flexible approach to fairness, which makes sense given the nuances of each situation. However, this flexibility can lead to inconsistencies, especially at the CCMA level, which isn’t great for employees. Lastly, looking at other countries, it seems like setting some clear minimum standards could help balance fairness and flexibility without being too rigid.

Conclusion and Recommendations 

This article examined the extent to which South African labour law protects employees’ rights to procedural fairness in dismissals for poor work performance. It has shown that the existing framework, grounded in constitutional values and statutory provisions, largely succeeds in balancing employer prerogative with employee protection. The emphasis on flexibility and substantive fairness reflects a conscious departure from formalistic approaches that characterised earlier labour law regimes.

While the law allows for flexibility in dismissal procedures, an analysis indicates that excessive leniency could jeopardise legal certainty and weaken employee protection. Procedural fairness must maintain its essential meaning, even without rigid adherence to formal steps or elaborate hearings.Therefore, employers should not dismiss employees for poor performance unless they have genuinely engaged with the employee, offered assistance, and provided a reasonable opportunity to improve. 

It is recommended that employers adopt clear and transparent performance management processes aligned with Schedule 8 of the Labour Relations Act. Adjudicators should apply consistent minimum procedural standards while remaining sensitive to context. In addition, policymakers and institutions such as the CCMA could consider issuing clearer guidance on procedural fairness in performance-related dismissals, drawing on comparative examples without imposing rigid formalism.

Ensuring procedural fairness in dismissals for poor work performance is essential to promoting dignity, fairness, and stability in South African labour relations.

Reference(S): 

Constitution of the Republic of South Africa, 1996 § 23.

Labour Relations Act 66 of 1995 §§ 188, 192 (S. Afr.).

Labour Relations Act 66 of 1995 sched. 8 (S. Afr.).

Avril Elizabeth Home for the Mentally Handicapped v. Comm’n for Conciliation, Mediation & Arbitration 2006 (27) I.L.J. 1644 (L.C.) (S. Afr.).

Sidumo v. Rustenburg Platinum Mines Ltd. 2008 (2) S.A. 24 (C.C.) (S. Afr.).

Edcon Ltd. v. Pillemer NO 2010 (1) S.A. 243 (C.C.) (S. Afr.).

JOHN GROGAN,  DISMISSAL, DISCRIMINATION AND UNFAIR LABOUR PRACTICES (Juta 2014).

JOHN GROGAN, WORKPLACE LAW (11th ed. Juta 2018).

Employment Rights Act 1996, c. 18 (U.K.).

ACAS Code of Practice on Disciplinary and Grievance Procedures (U.K.).