In South African labour law, fairness is the golden thread that runs through all disciplinary processes. A disciplinary hearing must be procedurally and substantively fair, with both employer and employee afforded a proper opportunity to state their case. But what happens when an employer believes the outcome was too lenient, or simply incorrect?
This article explores the legal boundaries of revisiting workplace sanctions, drawing on key judgments to clarify when a rehearing or internal review is permissible.
Fairness as the foundation
Employers typically appoint an independent chairperson to ensure impartiality during disciplinary hearings. If an employee is dissatisfied with the outcome, they may appeal internally or escalate the matter to the CCMA or Labour Court.
Case law: When is a rehearing justified?
Several landmark cases have shaped the legal framework:
BMW SA (Pty) Ltd v Van der Walt (1999)
The Labour Appeal Court said that whether a second disciplinary enquiry may be opened against an employee would depend upon whether it is, in all the circumstances, fair to do so. However, despite fairness being the yardstick, the court imposed factors that could potentially serve as a limitation to an employer holding a second disciplinary enquiry, namely being the following:
- The employer’s disciplinary prohibiting the holding of a second disciplinary enquiry; and
- Where it would be considered to be unfair to hold a second disciplinary enquiry, save in rather exceptional circumstances.
Branford v Metrorail Services (2004)
The Labour Appeal Court held that fairness is the ultimate test. An employer may override a chairperson’s decision, but only in exceptional circumstances.
Rustenburg Base Metal Refineries v Solidarity (2008)
The Labour Court allowed employers to review sanctions where:
- The seriousness of the misconduct was not fully appreciated.
- The outcome was so lenient it suggested bias or poor judgment.
- The sanction conflicted with the disciplinary code.
Samson v CCMA (2010)
Confirmed that employers may impose a harsher sanction if fair and under exceptional conditions.
Sars v CCMA (2016)
The employee's dismissal was found to be unfair because there was a collective agreement in place that gave the chairperson final decision-making powers, but the Constitutional Court denied reinstatement due to the gravity of the misconduct, awarding compensation instead.
Arcelormittal SA v Num (2020)
The Labour Court held that:
- Employers cannot override disciplinary outcomes unless expressly permitted by the code.
- The chairperson’s decision is effectively that of the employer, making any substitution functus officio.
- Rehearing undermines the fairness principle in the LRA.
Mzolo v Rhodes University (2020)
The High Court ruled that internal reviews are permissible – even if not explicitly provided for – if they are fair, non-prejudicial, and aligned with broader labour law principles. This case broadened the employer’s ability to act when misconduct is serious, and the initial outcome is unreasonable.
Anglo American Platinum v Beyers (2021)
The Labour Appeal Court reiterated that fairness remains the test, and rehearing is only justified in exceptional circumstances.
Chloë Loubser and Amandla Makhongwana 11 Dec 2023 Key takeaways for employers
Fairness is non-negotiable
Employers must ensure that any decision to revisit a disciplinary sanction is grounded in fairness. Courts consistently emphasise that fairness, not convenience or dissatisfaction, is the guiding principle. Revisiting a sanction without a fair and justifiable reason risks legal challenge and reputational damage.
Exceptional circumstances required
Employers may only override a chairperson’s decision in exceptional circumstances.
These include:
- A sanction that is shockingly inappropriate.
- Evidence of bias or failure to apply the mind.
- New facts that significantly alter the gravity of the misconduct.
Know your disciplinary code
The disciplinary code is central. If it does not provide for internal reviews or rehearings, employers may be functus officio, meaning they cannot revisit the decision.
Anastasia Vatalidis and Anna Tchalov 23 Jul 2025 Legal risk and employee relations
Revisiting sanctions without a solid legal basis can:
- Lead to unfair dismissal claims.
- Damage trust and morale in the workplace.
- Result in costly litigation or compensation orders.
Employers must weigh the legal risks against the operational need to maintain discipline and uphold workplace standards.
Final thoughts
Employers must tread carefully when considering a rehearing or internal review. While the law does allow for revisiting disciplinary outcomes, it does so under strict conditions to protect the integrity of workplace justice. Ensuring procedural fairness, aligning with the disciplinary code, and acting transparently are essential to avoid legal pitfalls.
If you are navigating a complex disciplinary matter, understanding these legal boundaries is essential. Let fairness, not frustration, guide your next steps.
