Substantive Fairness vs Bias

South African law students often treat substantive fairness, procedural fairness, and bias as if they were the same idea. They are not. In labour-law disputes, especially dismissal cases, each concept asks a different question.

At the most basic level:

• Substantive fairness asks whether there was a fair reason for dismissal.
• Procedural fairness asks whether the employer followed a fair process.
• Bias asks whether the person deciding the matter lacked the required objective impartiality.

The statutory starting point is the Labour Relations Act 66 of 1995 (LRA). Section 188 and Schedule 8 draw a clear distinction between dismissals that are unfair for want of a fair reason and dismissals that are unfair for want of a fair procedure.¹

This article explains that distinction in a practical way, with a focus on how law students should analyse exam or problem-style questions.

1. What is substantive fairness?

In dismissal law, substantive fairness concerns the merits of the employer’s decision. The question is not whether the hearing felt fair, but whether the dismissal was justified on the facts.

Schedule 8 to the Labour Relations Act 66 of 1995 indicates that, in misconduct cases, the inquiry includes whether:

• the employee contravened a rule or standard;
• the rule was valid or reasonable;
• the employee knew, or could reasonably be expected to have known, the rule;
• the rule was consistently applied; and
• dismissal was an appropriate sanction.²

That framework is reflected in South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing, where the court treated unfair dismissal as involving two linked inquiries: first, whether the employees were guilty of misconduct; second, whether dismissal was a fair sanction.³

For students, this is the cleanest way to remember substantive fairness:

Ask separately: Was the misconduct proved? If yes, was dismissal an appropriate response?

If the answer to either question is no, the dismissal may be substantively unfair.

2. What is procedural fairness?

Procedural fairness is different. It concerns the manner in which the employer reached its decision. In broad terms, a fair disciplinary process requires notice of the allegations, an opportunity to respond, and a hearing conducted in a manner that is fair in context.⁴

A key point for students is that procedural unfairness does not automatically mean substantive unfairness. An employee may be guilty of serious misconduct, yet the hearing may still have been procedurally defective. Equally, a perfectly orderly hearing cannot save a dismissal that lacked a fair reason.

This separation between the merits and the process is built into the Labour Relations Act 66 of 1995 itself.⁵

3. Where does bias fit?

Bias fits most naturally under procedural fairness. A biased chairperson, investigator, or decision-maker threatens the fairness of the process because the employee is entitled to a hearing before someone who can apply an impartial mind to the issues.

But bias is still not the same thing as procedural unfairness generally. Procedural unfairness may arise from poor notice, refusal to allow representation, or failure to hear relevant evidence. Bias is a narrower complaint: it alleges a lack of impartiality.

Bias is also not the same thing as substantive unfairness. A dismissal may be substantively fair even where there are serious complaints about the neutrality of the process. Conversely, a neutral chairperson may still reach a substantively wrong conclusion if the misconduct was not proved.

So, when analysing a problem question, do not write that a dismissal was substantively unfair because the chairperson was biased. That skips a step. The better approach is:

1. Identify the bias point as a procedural-fairness issue.
2. Then ask whether the evidence nevertheless establishes a fair reason for dismissal.
3. Then consider remedy and prejudice.

4. The legal test for bias

South African law does not treat every suspicion, irritation, or unfavourable ruling as proof of bias. The accepted standard is an objective one: whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the decision-maker would not bring an impartial mind to bear.

That approach appears in general bias jurisprudence such as Bernert v Absa Bank Ltd, which emphasises that the test is not subjective discomfort but a reasonable apprehension of bias based on the facts.⁶ It is also reflected in Maritz v The State.⁷

Although those are not labour-dismissal cases, the principle is useful because it gives students the correct legal meaning of bias. In workplace discipline, the same idea helps separate real partiality from mere disappointment with the outcome.

The point is reinforced in South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing, where the court’s discussion of recusal and bias makes clear that convincing facts are required; bias cannot simply be inferred from robust language or from the fact that the decision-maker formed an adverse view.⁸

5. What does not prove bias?

Students often overstate bias. The following usually do not, without more, establish a reasonable apprehension of bias:

• the chairperson ruled against one side on an evidentiary issue;
• the employee believes the employer had already formed a negative view;
• the outcome was harsh;
• the chairperson asked difficult questions;
• the employee subjectively felt unheard.

The reason is that the legal test is objective. Bernert v Absa Bank Ltd is especially helpful here: the issue is what a reasonable and informed observer would apprehend, not what the disappointed party personally believes.⁹

Similarly, Mbana v Shepstone & Wylie is useful for showing that prior association or some connection between participants does not automatically prove bias. The court still asks whether, on the proved facts, the relationship objectively gives rise to a reasonable apprehension of partiality.¹⁰

6. How substantive fairness and bias interact

The concepts are separate, but they can interact in practice.

(a) A process may be biased, yet the merits still matter

If the decision-maker was biased, the disciplinary process may be procedurally unfair. But that does not by itself answer whether the employee actually committed the misconduct. The merits still matter, especially when a tribunal later examines the facts afresh.

That is why students should avoid collapsing the inquiry into one conclusion. Always keep the following questions distinct:

• Was the process fair?
• Was the decision-maker impartial?
• Was the misconduct proved?
• Was dismissal an appropriate sanction?

(b) A process complaint does not always become a bias complaint

Long v South African Breweries (Pty) Ltd and Others is useful because it shows how labour disputes often contain complaints about the fairness of disciplinary steps, but the legal inquiry still requires attention to the actual nature of the complaint.¹¹ Not every complaint about suspension, investigation, or internal handling becomes a legally sustainable allegation of bias.

The case also illustrates a point students often miss: a precautionary suspension does not automatically require a pre-suspension hearing. So a complaint that an employer acted one-sidedly at the suspension stage is not, without more, proof of bias.¹²

(c) Merits remain central in dismissal disputes

Toyota SA Motors (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others is a useful labour-law reminder that dismissal cases often turn centrally on substantive fairness: whether the misconduct or incapacity justified dismissal.¹³ That makes it a good supporting authority when explaining why students must not allow process complaints to overshadow the merits.

7. A practical method for answering problem questions

If an exam question raises allegations of an unfair disciplinary hearing, use this sequence.

Step 1: Identify the statutory framework

Begin with the Labour Relations Act 66 of 1995: a dismissal is unfair unless the employer shows both a fair reason and a fair procedure.¹⁴

Step 2: Deal with substantive fairness separately

Ask:

• What misconduct is alleged?
• Was it proved?
• Was the rule valid and known?
• Was it consistently applied?
• Was dismissal proportionate?

Use South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing for the two-stage inquiry into guilt and sanction.¹⁵

Step 3: Then analyse procedural fairness

Ask whether the employee had notice, an opportunity to be heard, and a fair hearing process under the LRA framework.¹⁶

Step 4: Is there a real bias argument?

If bias is alleged, apply the objective test from Bernert v Absa Bank Ltd and Maritz v The State: would a reasonable, objective and informed person reasonably apprehend that the decision-maker would not act impartially?¹⁷

Step 5: Avoid conclusion-jumping

Do not conclude:

• “The chairperson was biased, therefore the dismissal was substantively unfair.”

Rather conclude:

• “If the facts establish a reasonable apprehension of bias, the process may have been procedurally unfair. Substantive fairness still requires a separate inquiry into misconduct and sanction.”

That formulation is legally safer and analytically clearer.

8. Quick examples

Example 1: Guilty employee, unfair process

An employee admits assaulting a colleague. The employer proves the rule, the breach, and the seriousness of the misconduct. But the hearing chairperson openly states before evidence is led that “employees like this must always be dismissed.”

• Substantive fairness: likely present, because the misconduct is serious and dismissal may be appropriate.
• Bias/procedural fairness: potentially problematic, because the statement may support a reasonable apprehension that the chairperson had pre-judged sanction.

Example 2: Neutral chairperson, weak merits

A hearing is conducted politely and impartially, but the employer cannot prove theft on the evidence.

• Bias: absent.
• Substantive fairness: absent, because misconduct was not proved.

Example 3: Complaint about suspension mistaken for bias

An employee is placed on precautionary suspension pending investigation and argues that the employer’s decision shows the outcome was predetermined.

• Long v South African Breweries (Pty) Ltd and Others suggests caution here: the legality and fairness of suspension must be analysed on its own terms, and the absence of a pre-suspension hearing does not automatically prove bias.¹⁸

9. The exam takeaway

For South African labour-law purposes, the best short answer is this:

• Substantive fairness = was there a fair reason to dismiss?
• Bias = was the decision-maker objectively impartial?
• Procedural fairness = was the process fair?

These questions overlap in practice, but they are not interchangeable. The strongest exam answers keep them separate, apply the proper test to each, and only then explain how they affect one another.

Key authorities

• Labour Relations Act 66 of 1995
• South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing
• Long v South African Breweries (Pty) Ltd and Others
• Bernert v Absa Bank Ltd
• Maritz v The State
• Mbana v Shepstone & Wylie
• Islamic Unity Convention v Minister of Telecommunications and Others
• Toyota SA Motors (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others

References

Footnotes

1. Labour Relations Act 66 of 1995 s 188; sch 8. ↩

2. Labour Relations Act 66 of 1995 sch 8 item 7. ↩

3. South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing. ↩

4. Labour Relations Act 66 of 1995 sch 8. ↩

5. Labour Relations Act 66 of 1995 s 188. ↩

6. Bernert v Absa Bank Ltd. ↩

7. Maritz v The State. ↩

8. South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing. ↩

9. Bernert v Absa Bank Ltd. ↩

10. Mbana v Shepstone & Wylie. ↩

11. Long v South African Breweries (Pty) Ltd and Others. ↩

12. Long v South African Breweries (Pty) Ltd and Others. ↩

13. Toyota SA Motors (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others. ↩

14. Labour Relations Act 66 of 1995 s 188. ↩

15. South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing. ↩

16. Labour Relations Act 66 of 1995 sch 8. ↩

17. Bernert v Absa Bank Ltd; Maritz v The State. ↩

18. Long v South African Breweries (Pty) Ltd and Others. ↩