Disciplinary Hearings in South Africa

Published by Devhulon Business & People Solutions

 

Managing employee misconduct is one of the areas of employment relations where employers can expose themselves to significant risk if the process is handled incorrectly.

 

A disciplinary hearing is not simply a meeting where an employer tells an employee that they have done something wrong. It is part of a broader disciplinary process that should allow the employer to establish the facts, give the employee a fair opportunity to respond, and reach a decision based on the evidence and circumstances of the matter.

 

For South African employers, disciplinary processes must be approached in accordance with the Labour Relations Act 66 of 1995 (LRA), the applicable Code of Good Practice: Dismissal, workplace policies, disciplinary codes, collective agreements and, where relevant, bargaining council requirements.

 

The current Code of Good Practice: Dismissal was published by the Department of Employment and Labour on 4 September 2025. It provides updated guidance on fair dismissal, including misconduct and procedural fairness.

 

This guide explains the practical steps an employer should consider when dealing with alleged employee misconduct.

 

What is a disciplinary hearing?

A disciplinary hearing, sometimes called a disciplinary enquiry, is a formal workplace process used to determine whether an employee has committed alleged misconduct and, if so, what an appropriate response should be.

The purpose is not to punish an employee automatically.

The employer should establish:

1. What rule or standard allegedly was breached;
2. Whether the employee actually breached the rule or standard;
3. Whether the rule was known or reasonably accessible to the employee;
4. Whether the rule is valid and reasonable;
5. What evidence supports the allegation;
6. What explanation the employee provides;
7. Whether there are relevant mitigating or aggravating circumstances; and
8. What sanction, if any, is appropriate.

The process should therefore be based on fairness, evidence, consistency and proportionality.

The Labour Relations Act establishes the framework for fair labour practices and provides mechanisms for resolving labour disputes, including through the CCMA.

 

Does every misconduct matter require a formal hearing?

No.

Employers should distinguish between corrective management, informal intervention and formal disciplinary action.

Not every workplace mistake warrants a formal disciplinary enquiry.

For relatively minor issues, an employer may be able to address the matter through counselling, coaching or an appropriate warning, depending on the circumstances and the employer’s disciplinary code.

The CCMA’s guidance explains that counselling may be appropriate where an employee does not understand a workplace standard, where performance or conduct can reasonably be corrected, or where the breach is relatively minor. Formal disciplinary action becomes more appropriate where a rule has been breached in circumstances requiring a formal response.

The seriousness of the allegation should therefore be assessed before deciding on the appropriate process.

 

Step 1: Establish the alleged misconduct

Before calling an employee to a disciplinary hearing, the employer should understand exactly what is alleged to have happened.

Avoid vague allegations such as:

“You have a bad attitude.”

or:

“You were disrespectful.”

The allegation should be sufficiently specific for the employee to understand what conduct is being challenged.

For example:

“It is alleged that on 18 August 2026, at approximately 10:15, you refused a reasonable instruction issued by your supervisor to complete the stock reconciliation, despite being instructed to do so during your scheduled working hours.”

The second formulation gives the employee substantially more information about the incident they are expected to answer.

 

Step 2: Conduct a reasonable investigation

A disciplinary hearing should not be the first time management starts trying to discover what happened.

An employer should first conduct a reasonable preliminary investigation.

Depending on the allegation, this may include:

• interviewing relevant employees;
• obtaining written statements;
• reviewing emails or correspondence;
• examining attendance or time records;
• checking company policies;
• reviewing CCTV where lawfully available;
• examining transaction or system records;
• obtaining relevant documents;
• identifying potential witnesses; and
• giving the employee an opportunity to provide an initial explanation where appropriate.

The investigation does not need to become a full trial before the hearing.

Its purpose is to establish whether there is a reasonable basis to proceed and to identify the relevant evidence.

 

Step 3: Check the applicable workplace rule

One of the questions an employer should ask is:

What rule or standard did the employee allegedly breach?

The rule may arise from:

• a disciplinary code;
• company policy;
• employment contract;
• workplace procedure;
• collective agreement;
• legislation;
• a reasonable management instruction; or
• an established workplace standard.

Employers should also consider whether employees were reasonably aware of the relevant rule or standard.

A disciplinary process becomes significantly more difficult to defend when an employer attempts to discipline employees for rules that were never communicated or consistently applied.

The employer should therefore keep evidence showing how important workplace rules are communicated and maintained.

 

Step 4: Decide whether formal disciplinary action is appropriate

Once the facts and applicable rule have been considered, management should determine the appropriate route.

Possible responses can include:

• counselling;
• coaching;
• verbal warning;
• written warning;
• final written warning;
• other appropriate disciplinary measures provided for by the employer’s policy;
• or dismissal in sufficiently serious circumstances.

The appropriate response depends on the nature of the misconduct and the circumstances of the individual case.

There is no universal rule that an employee must receive three warnings before dismissal.

The seriousness of the misconduct matters.

The CCMA specifically notes that dismissal may follow as a first offence where the misconduct is sufficiently serious.

 

Step 5: Prepare a proper notice of disciplinary hearing

Where a formal hearing is appropriate, the employee should receive reasonable notice and sufficient information to understand the allegations and prepare a response.

The notice should generally identify:

• the employee’s name;
• the date, time and venue or platform;
• the allegations;
• the employee’s rights in the process;
• the right to representation where applicable;
• the right to an interpreter where reasonably required;
• the potential consequences where appropriate; and
• any relevant workplace procedure governing the hearing.

The current Code of Good Practice: Dismissal places emphasis on procedural fairness, including providing employees with written notice of allegations and a reasonable opportunity to prepare their defence.

Employers should avoid unnecessarily complicated charge sheets. The objective is clarity.

 

Step 6: Choose an appropriate chairperson

The chairperson plays an important role in ensuring that the hearing is conducted fairly.

Depending on the organisation and circumstances, the chairperson may be an internal manager or an appropriately independent person.

The chairperson should:

• understand the allegations;
• remain impartial;
• allow both sides a reasonable opportunity to present their cases;
• assess the evidence;
• consider relevant mitigating and aggravating factors;
• avoid prejudging the outcome; and
• provide a reasoned finding.

The person who investigated the matter does not automatically have to be excluded from the process in every circumstance, but employers should carefully consider potential conflicts of interest and whether the proposed chairperson can approach the matter impartially.

For more complex matters, using an experienced independent chairperson can help strengthen the integrity of the process.

 

Step 7: Allow the employee to respond

A disciplinary hearing should provide the employee with a genuine opportunity to answer the allegations.

The employee should be able to:

• respond to the allegations;
• challenge relevant evidence;
• provide their own evidence;
• call relevant witnesses where appropriate;
• explain their version of events; and
• raise relevant mitigating circumstances.

The CCMA’s disciplinary procedure guidance recognises an employee’s right to representation by a fellow employee or shop steward and, where needed, an interpreter.

The exact rights may also be affected by collective agreements, workplace policies and applicable bargaining council rules.

 

Step 8: Present and assess the evidence

The hearing should focus on evidence rather than assumptions.

For example, if an employee is accused of unauthorised absence, the employer may need to consider:

• attendance records;
• leave records;
• communication between the employee and manager;
• medical documentation where relevant;
• the employee’s explanation;
• workplace policies; and
• evidence from relevant witnesses.

The chairperson should consider the evidence presented by both sides.

In disciplinary matters, the employer generally bears the responsibility of establishing the misconduct on a balance of probabilities.

This means asking whether, based on the evidence, it is more probable than not that the alleged misconduct occurred.

 

Step 9: Make a finding

After hearing the evidence, the chairperson should make a finding on each allegation.

The finding should distinguish between:

Guilty

The evidence supports the allegation on the applicable standard.

Not guilty

The allegation has not been established sufficiently.

Where there are multiple charges, each should be considered separately.

For example:

Charge	Finding
Unauthorised absence	Guilty
Gross insubordination	Not guilty
Dishonesty	Guilty

A finding should be based on the evidence presented rather than the employee’s reputation, personal relationship with management or assumptions about what “usually happens”.

 

Step 10: Consider the appropriate sanction

A guilty finding does not automatically mean dismissal.

The appropriate sanction should be considered carefully.

Factors may include:

• seriousness of the misconduct;
• nature of the workplace rule;
• employee’s knowledge of the rule;
• employee’s disciplinary record;
• length of service;
• previous warnings;
• consistency with sanctions imposed in comparable cases;
• employee’s position and responsibilities;
• actual or potential harm caused;
• whether the employment relationship has been damaged;
• mitigating circumstances; and
• aggravating circumstances.

The current Code of Good Practice: Dismissal specifically provides guidance on determining whether dismissal is an appropriate sanction for misconduct.

An employer should not approach every disciplinary matter with the predetermined objective of dismissal.

 

What is progressive discipline?

Progressive discipline is the principle that workplace discipline should, where appropriate, correct behaviour rather than simply punish employees.

For less serious misconduct, an employer may progressively escalate disciplinary measures when misconduct is repeated.

For example:

Counselling → Warning → Final Warning → Further disciplinary action

However, progressive discipline does not mean every employee must receive the same number of warnings regardless of the misconduct.

Serious misconduct can justify more severe disciplinary action, including dismissal, depending on the facts and the requirements of fair procedure.

The CCMA confirms that dismissal can be appropriate for serious misconduct even where it is a first offence.

 

Consistency matters

One of the most common mistakes employers make is treating similar misconduct differently without a defensible reason.

Imagine two employees commit substantially similar offences under similar circumstances.

Employee A receives a final written warning.

Employee B is dismissed.

The employer should be able to explain the difference.

This does not mean that every case must receive exactly the same sanction. Individual circumstances matter.

However, employers should be able to demonstrate that disciplinary decisions are made consistently and rationally.

A properly maintained disciplinary record can help management identify patterns and support consistent decision-making.

 

What if the employee refuses to attend the hearing?

An employee should not simply be treated as guilty because they fail to attend.

The employer should consider why the employee did not attend and whether there is a legitimate reason for the absence.

Where an employee refuses to participate without good cause after being properly notified, the employer may in appropriate circumstances proceed in the employee’s absence.

The CCMA’s guidance recognises that failure to attend does not necessarily prevent a hearing from continuing, subject to whether good cause has been shown.

The employer should carefully document:

• the notice provided;
• attempts to communicate with the employee;
• the employee’s response;
• any reasons provided for non-attendance; and
• the basis for proceeding.

 

Suspension pending a disciplinary hearing

Suspension should not automatically be used whenever an employee is accused of misconduct.

In appropriate circumstances, an employee may be placed on precautionary suspension while an investigation or disciplinary process takes place.

Employers should consider whether the employee’s presence could:

• interfere with an investigation;
• influence witnesses;
• tamper with evidence;
• create a risk of further misconduct; or
• otherwise prejudice the process.

The CCMA’s disciplinary guidance recognises precautionary suspension on full pay in circumstances where the employee’s continued presence may jeopardise an investigation or create similar risks.

Employers should distinguish precautionary suspension from suspension imposed as a disciplinary sanction.

 

Documentation is not optional

Good HR administration is one of the strongest protections an employer can have.

Keep a complete record of:

• the original complaint or incident;
• investigation notes;
• relevant evidence;
• witness statements;
• policies and rules relied upon;
• disciplinary notice;
• proof of delivery;
• hearing minutes;
• documents presented;
• witness evidence;
• chairperson’s findings;
• sanction;
• mitigation and aggravation submissions;
• outcome letter;
• appeal documentation where applicable; and
• subsequent implementation of the outcome.

The updated Code of Good Practice: Dismissal places increased emphasis on proper records and the reasons supporting disciplinary decisions.

A disciplinary process that was conducted fairly but poorly documented can still become difficult for an employer to defend later.

 

Common disciplinary mistakes employers should avoid

1. Deciding the outcome before the hearing

If management has already decided that an employee will be dismissed, the hearing can become a box-ticking exercise.

The outcome should remain open until the relevant evidence and representations have been considered.

2. Using vague charges

Employees must understand what they are being accused of.

3. Treating every offence as a dismissible offence

The seriousness of the misconduct and circumstances must be considered.

4. Assuming three warnings are always required

There is no automatic three-warning rule. Serious misconduct can justify dismissal as a first offence in appropriate circumstances.

5. Ignoring inconsistent treatment

Different treatment of comparable cases should have a defensible explanation.

6. Failing to investigate

Management should not rely solely on rumours, assumptions or one person’s version of events.

7. Not giving the employee a genuine opportunity to respond

Procedural fairness matters.

8. Poor record keeping

If the employer cannot demonstrate what happened, it becomes much harder to defend the process later.

9. Using disciplinary action to deal with a performance problem

Poor performance and misconduct are not the same thing.

An employee who cannot meet a reasonable performance standard may require a performance-management or incapacity process rather than being charged with misconduct simply because their performance is inadequate.

10. Treating the hearing as a punishment

The objective of the process is to establish the facts and determine an appropriate response—not to humiliate or intimidate an employee.

 

What should a small business do if it does not have an HR department?

Small businesses often face a particular challenge because they may not have an internal HR professional available to guide managers through disciplinary and incapacity matters.

The current Code recognises that smaller employers may have fewer resources and allows some flexibility in how procedures are applied, while still requiring fairness and legitimate reasons for dismissal.

A small business should nevertheless have basic HR infrastructure in place, including:

• employment contracts;
• disciplinary code;
• grievance procedure;
• leave procedures;
• performance-management process;
• attendance rules;
• relevant workplace policies;
• employee records; and
• a consistent process for dealing with misconduct.

Where management is uncertain, obtaining professional HR or labour-relations assistance before taking disciplinary action can reduce avoidable risk.

 

When should an employer seek HR assistance?

Professional HR assistance can be particularly valuable where the matter involves:

• possible dismissal;
• gross misconduct;
• allegations of dishonesty;
• senior employees;
• employees who are union members;
• collective agreements;
• complex evidence;
• potential discrimination;
• whistleblowing;
• harassment;
• repeated misconduct;
• inconsistent historical disciplinary treatment;
• possible CCMA litigation; or
• a breakdown in the employment relationship.

The cost of obtaining advice before a difficult disciplinary matter can be significantly lower than the cost of correcting a poorly managed process later.

 

Disciplinary Hearing Checklist for Employers

Before proceeding, ask:

Before the hearing

☐ What exactly is the allegation?

☐ What rule or standard was allegedly breached?

☐ Was the rule communicated to the employee?

☐ Has a reasonable investigation been conducted?

☐ What evidence is available?

☐ Who are the relevant witnesses?

☐ Is formal disciplinary action appropriate?

☐ Has the employee received adequate notice?

☐ Does the employee understand the allegations?

☐ Has the employee been informed of applicable representation rights?

During the hearing

☐ Is the chairperson impartial?

☐ Has the employer presented its case?

☐ Has the employee had a fair opportunity to respond?

☐ Have relevant witnesses and evidence been considered?

☐ Has each allegation been considered separately?

☐ Have mitigating and aggravating circumstances been considered?

After the hearing

☐ Has a reasoned finding been made?

☐ Is the sanction appropriate?

☐ Has consistency been considered?

☐ Has the outcome been communicated?

☐ Has the employee been informed of applicable appeal or dispute-resolution options?

☐ Have the records been securely retained?

 

Final thoughts

A fair disciplinary process protects both the employer and the employee.

For employers, the objective should not be to find a way to dismiss an employee. The objective should be to establish the facts, apply workplace rules consistently, give the employee a fair opportunity to respond and take a proportionate decision.

Where dismissal is ultimately considered, the employer should be able to demonstrate both a fair reason and a fair process.

South African labour law continues to evolve, and employers should ensure that their disciplinary policies and practices remain aligned with the current legal framework.

The Labour Relations Act and the current Code of Good Practice: Dismissal should therefore be treated as essential reference points when developing and reviewing workplace disciplinary procedures.

Frequently Asked Questions

Can an employee be dismissed for a first offence?

Yes, in appropriate circumstances. There is no universal requirement that an employee must receive three warnings before dismissal. The seriousness of the misconduct and the circumstances of the case must be considered.

How much notice must an employee receive for a disciplinary hearing?

The employee should receive reasonable notice and sufficient information to understand the allegations and prepare a response. The appropriate period can depend on the circumstances, workplace rules and applicable collective agreements.

Does an employee have the right to representation?

The CCMA’s disciplinary procedure guidance recognises representation by a fellow employee or shop steward, subject to the applicable workplace arrangements and agreements. Employees may also require an interpreter where reasonably necessary.

Can an employer hold a disciplinary hearing if an employee does not attend?

Potentially, but the employer should first establish why the employee is absent and whether there is good cause. The circumstances and applicable workplace procedure should be considered before proceeding in the employee’s absence.

Can an employer suspend an employee while investigating misconduct?

In appropriate circumstances, an employee may be placed on precautionary suspension while an investigation or disciplinary process is underway. The employer should have a legitimate reason for doing so and follow applicable requirements.

Can poor performance be handled through a disciplinary hearing?

Not automatically. Poor performance and misconduct are different employment-relations issues. Where the problem concerns an employee’s inability to meet reasonable performance standards, an appropriate performance-management or incapacity process may be required.

What happens if an employee believes the dismissal was unfair?

An employee may be able to refer an unfair dismissal or other applicable labour dispute to the CCMA or the relevant bargaining council, depending on the nature of the dispute and jurisdiction. The LRA provides the broader statutory framework for resolving labour disputes.

Disclaimer

This article is provided for general informational and educational purposes. It does not constitute legal advice and should not be relied upon as a substitute for advice based on the specific facts of an individual employment matter. South African labour legislation, regulations, codes, collective agreements and case law may change. Employers should obtain appropriate professional advice where the circumstances of a matter are complex or the consequences may be significant.

Sources: South African Government, Labour Relations Act 66 of 1995 and the 2025 Code of Good Practice: Dismissal; Commission for Conciliation, Mediation and Arbitration (CCMA), Disciplinary Procedures information sheet.