• The Labour Appeal Court (LAC), in Universal Product Network (Pty) Ltd (UPN) v Mbatsana N.O. (JA31/25) [2026] ZALAC 14, addressed the "important legal question of whether gross procedural unfairness can mutate into substantive unfairness".
• The LAC confirmed that gross procedural unfairness cannot mutate into substantive unfairness.
• The bifurcation of procedural and substantive fairness is absolute for misconduct and incapacity dismissals.

The LAC definitively confirmed that, under the Labour Relations Act 66 of 1995 (LRA), no matter how gross, procedural unfairness cannot transform into substantive unfairness. An important qualification, however, is that in dismissals relating to operational requirements (retrenchments), issues of procedural unfairness may be inextricably intertwined with substantive unfairness to the point that a dismissal may be found to be substantively unfair.

The bifurcation of procedural and substantive fairness

Section 188(1)(a)(i) of the LRA provides that a dismissal is unfair if the employer fails to prove a fair reason. Section 188(1)(b) provides that a dismissal is unfair if not affected in accordance with a fair procedure. These are two separate enquiries.

Thus, no matter how gross a procedural defect, procedural unfairness cannot morph into substantive unfairness. As the LAC illustrated, if the contrary were true, a dismissal for theft without any hearing would become substantively unfair, even where the employer had a fair reason to...

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