Procedural Missteps Are Expensive: Why HR Must Follow the Rules

The Labour Court has reminded both employers and commissioners that even in the relatively informal setting of CCMA and bargaining council proceedings, procedural fairness remains non-negotiable.

In SAMWU obo Lotz v Hessequa Local Municipality [2025] ZALCCT 94, the Court overturned an arbitration award and ordered that the matter be reheard — finding that the commissioner’s failure to follow basic procedural safeguards rendered the proceedings unfair.

Mr Lotz, represented by the South African Municipal Workers’ Union (SAMWU), was dismissed by the Hessequa Local Municipality for failing to obtain a valid driver’s licence required for his position.

At arbitration, the dismissal was upheld. However, Lotz approached the Labour Court, arguing that the arbitration process itself had been fundamentally flawed. His complaints included:

The commissioner did not place any witnesses under oath or affirmation.
The arbitration continued in his absence, despite questions about proper notice.
He was denied the opportunity to make closing submissions.

What the Court Had to Decide

The Court had to determine whether these procedural missteps amounted to gross irregularities under section 145(2) of the Labour Relations Act, 1995, and whether they had deprived the employee of a fair hearing.

Legal Principles Applied

Evidence Under Oath: Taking testimony under oath or affirmation is a minimum safeguard of fairness and integrity. Failure to do so is a serious procedural defect (Morningside Farm v Van Staden NO).
Right to Be Heard: Proceeding without confirming that a party has received proper notice violates the foundational audi alteram partem principle — the right to be heard.
Closing Submissions: Denying either party the opportunity to make closing arguments undermines the fairness of the process (Mutual & Federal Insurance Co v CCMA).
Condonation in the Interests of Justice: Although the review was filed outside the prescribed time limit, the Court granted condonation, noting the strength of the applicant’s case and the importance of procedural integrity.

Court’s Findings

The Labour Court held that the commissioner’s handling of the arbitration fell short of basic procedural standards.

The failure to administer oaths,
proceeding in the employee’s absence without verifying notice, and
denying the right to closing submissions

collectively undermined the fairness and reliability of the arbitration.

The Court concluded that the award could not stand and remitted the matter to the CCMA for a new hearing before a different commissioner.

Practical Lessons for Employers and Practitioners

Due process matters: Even where the evidence of misconduct appears strong, skipping procedural steps can invalidate an otherwise fair dismissal.
Confirm attendance: Always ensure employees are properly notified and have a real opportunity to participate.
Oaths are not optional: All witnesses must testify under oath or affirmation to preserve procedural integrity.
Allow closing submissions: This is a core aspect of the right to be heard.
Respect formality — even in informal forums: The CCMA’s efficiency does not permit ignoring fairness safeguards.

Even in the CCMA’s informal environment, basic procedural discipline cannot be overlooked.
A missing oath, a skipped opportunity to speak, or an assumption about attendance can undo an entire case.

The Court’s message is clear: fair process is not a technicality — it’s the foundation of justice.

At HR Consult, we help businesses navigate the complexities of disciplinary procedures, CCMA processes, and compliance with confidence — ensuring every step is legally sound and procedurally fair.