The Facts

The employee was the director of supply chain management at the University of Zululand and faced serious misconduct charges, with dismissal contemplated. Recalled from leave in early December 2025, she received a charge sheet and a virtual hearing was set for 5–12 December, supported by extensive documentation, including a forensic report. Although legal representation was permitted, compressed time frames hindered her efforts to secure counsel. Postponement requests were refused. After she sought an adjournment and the chairperson’s recusal, the chairperson ruled that the hearing would proceed on paper: the employer would file written submissions; the employee would have a short period to respond in writing; and the chairperson would decide guilt and sanction without oral evidence, witnesses or cross‑examination. The employee approached the Labour Court to set aside the ruling and to compel compliance with the employer’s disciplinary code.

The Labour Court’s analysis

A central pillar of the court’s reasoning was that the disciplinary code formed part of the contract of employment. Jurisdiction was thus founded in section 77(3) of the Basic Conditions of Employment Act 75 of 1997, and the dispute had to be assessed through the lens of contractual lawfulness rather than the more flexible standards of procedural fairness under the Labour Relations Act 66 of 1995.

The disciplinary code conferred on employees the rights to:

• lead evidence;
• call witnesses; and
• cross‑examine the employer’s witnesses.

Against that backdrop, the unilateral conversion to a paper process was a material breach of the contractually binding disciplinary framework. While employers often cite Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 27 ILJ 1644 (LC) to justify informality, the court reaffirmed the caveat in that judgment: where a collective agreement or employment contract prescribes a more formal, adversarial model, the employer is bound by it.

The employer argued that its policy allowed deviation because it only needed to be followed “as far as reasonably possible”. The court drew the distinction between impossibility and inconvenience: deviation may be justified where stipulated procedures are impossible to follow, not merely inconvenient. The desire to conclude a hearing expeditiously does not meet the threshold of unreasonableness required to depart from a binding code. If employers elect to incorporate an elaborate code into contracts, they must live with its consequences.

The Labour Court also distinguished fairness from lawfulness. Even if a paper process might, in some circumstances, be procedurally fair under general labour law principles, it was unlawful here because it stripped the employee of her contractual rights. The denial of cross‑examination and the opportunity to lead evidence constituted ongoing, irreparable harm. Once lost during a live process, those rights cannot be restored after the fact through arbitration or compensation.

While the court declined to remove the chairperson, it set aside the ruling that converted the hearing into a paper process and directed the employer to comply with the disciplinary code. The court emphasised that where an employer suspects delaying tactics, the lawful response, particularly under a contractually incorporated code, is to manage the process within that framework (e.g. refuse unreasonable postponements or proceed in absentia where the code permits), not to rewrite the rules during the process.

Key takeaways for employers

• Contractual disciplinary codes matter: Where a disciplinary code is incorporated into an employee’s contract, employers are legally bound to apply it. Employers are advised not to contractually incorporate disciplinary codes.
• Flexibility has limits: Employers cannot unilaterally dilute or bypass procedural rights for speed or convenience when those rights are contractually entrenched.
• Managing employee delays lawfully: Where unreasonable delays are experienced, control the process within the parameters of the code.