Disputes and CCMA support · · 7 min read · 1,648 words
The fair disciplinary hearing, step by step
By the LabourLink editorial team. Last reviewed 17 October 2026.
The short answer
The 2025 Code of Good Practice: Dismissal asks for four things: notice of the allegations, a reasonable time to prepare and respond on both the allegations and the sanction, the assistance of a fellow employee or union representative, and a language the employee is comfortable with where reasonably possible.
What fairness means in a hearing
South African law does not ask employers to run disciplinary hearings like criminal trials. It asks for something simpler and, in practice, harder: a genuine opportunity for the employee to answer the allegation before a decision is made. The Code of Good Practice: Dismissal, published in September 2025, puts it plainly. The purpose of a fair procedure is to ensure a genuine dialogue and an opportunity for reflection before any decision is taken[1].
A dismissal is fair only if it is for a fair reason and follows a fair procedure[1]. The Labour Relations Act places the burden on the employer: in a dispute, the employer must show both[2]. A strong reason does not cure a poor process, and a polished process does not save a weak reason. Both have to stand.
The four elements of a fair procedure
The Code sets out what usually happens before a decision to dismiss. The employee should be[1]:
- notified of the allegations of misconduct, preferably in writing;
- given an opportunity, within a reasonable period, to prepare and to make representations on both the allegations and the appropriate sanction;
- allowed the assistance of a fellow employee or a trade union representative; and
- where reasonably possible, given the opportunity to converse in a language the employee is comfortable with.
The Code also says that allegations should be made available or explained in enough detail to allow the employee to understand them[1]. Each of these points is easy to state and easy to get wrong.
The charge
Write the allegation as a description of conduct, with a date, a place and the rule that was broken. "Gross misconduct" is a conclusion, not a charge. "On 3 October 2026 at the Bellville depot you removed two cases of stock without authorisation, in breach of clause 4 of the stock control policy" is a charge. The employee can answer it, the chairperson can decide it, and a commissioner can test it.
Time to prepare
The Code speaks of a reasonable period[1]. It does not specify a number of days, and the right period depends on the complexity of the matter and the volume of documents. Many disciplinary codes provide for a set notice period. Whatever your code says, follow it, and grant a reasonable postponement if the employee asks for time to secure a representative or obtain documents.
Representation
The Code refers to the assistance of a fellow employee or a trade union representative[1]. Your own disciplinary code may allow more. Where the employee is a trade union representative or office bearer, the Code says that discipline should not be instituted without first informing and consulting the trade union[1].
Language
Where reasonably possible, the employee should be able to converse in a language they are comfortable with[1]. If an interpreter is used, record who interpreted and confirm at the start that the employee understands.
Investigation before the hearing
The Code notes that an investigation or enquiry does not have to be formal, and that its nature should suit the circumstances, including the type of allegation and the size of the employer[1]. In a small business, a short meeting with the employee may be enough. In a larger organisation, or where the facts are disputed, a proper investigation is usually wiser: statements from witnesses, copies of CCTV footage or system logs, and a short report that sets out what was found and what was not.
The investigator and the chairperson should be different people. The Code's language about genuine dialogue and reflection is difficult to satisfy if the person deciding the matter has already investigated it and formed a view.
Running the hearing
A practical order of proceedings is:
- The chairperson introduces the parties, confirms the employee received the notice and the charge, confirms representation and language, and explains the procedure.
- The employer's representative presents the evidence in support of the charge, and the employee or representative may question each witness.
- The employee presents their version and any witnesses, who may be questioned in turn.
- Both sides make short closing submissions on whether the charge is proven.
- The chairperson decides, and if the employee is found guilty, invites submissions on sanction.
- The chairperson decides on sanction and gives reasons.
Record the hearing, either by audio recording with consent or by detailed minutes that both sides can check. If the matter goes to the CCMA, the record will be read closely.
Deciding the sanction
A finding of guilt does not automatically mean dismissal. The Code says that, generally, dismissal is only an appropriate sanction if a continued employment relationship is intolerable[1]. It lists factors to consider, including the nature and requirements of the job, the seriousness of the misconduct and its effect on the business, whether progressive discipline might prevent recurrence, any acknowledgement of wrongdoing, and the employee's circumstances, such as length of service and disciplinary record[1].
The Code also asks whether the rule was valid and reasonable, whether the employee knew or could reasonably be expected to have known of it, and whether the employer has applied it consistently[1]. Consistency matters. The Code's general rule is that the employer should apply the sanction of dismissal in the same way it has done in the past, and consistently between employees who took part in the same misconduct[1]. If a manager was given a final written warning last year for the same conduct, the chairperson needs to know that, and the employer needs to be ready to explain any difference.
Keeping records
The Code recommends that employers keep records for each employee showing the nature of any disciplinary transgressions, the actions taken and the reasons for those actions[1]. Good records make the next hearing fairer and the next arbitration easier.
Common mistakes
- Drafting vague charges that the employee cannot answer.
- Refusing a reasonable postponement to find a representative.
- Appointing a chairperson who investigated the matter or witnessed the incident.
- Deciding the sanction before hearing the employee on mitigation.
- Ignoring how similar cases were treated in the past.
- Failing to give reasons in writing.
A worked example
A retail store dismisses a cashier for a till shortage of R800. The investigation is thorough: till reports, CCTV and a statement from the supervisor. At the hearing, the cashier says another employee used her till while she was on a break. The chairperson does not call the other employee, finds the cashier guilty and dismisses her. At arbitration, the commissioner hears that the store's own policy requires cashiers to log off before a break, that the cashier had nine years of clean service, and that a colleague with a larger shortage the previous month received a final written warning. The dismissal is found substantively unfair because the sanction was inconsistent and the explanation was not properly tested. The same facts, handled with a fuller hearing and a considered sanction, could have produced a defensible final warning or a defensible dismissal.
When the employer cannot follow every step
The Code accepts that in exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, it may dispense with some or all of them[1]. It also warns that the employer may be required to justify that decision if the employee refers a dispute[1]. Treat this as a narrow exception, not a shortcut.
Smaller employers
The Code recognises that small businesses operate differently. It says the Code should not be read as requiring small businesses to comply with obligations that are not practical or feasible for their operation, and that anyone judging the fairness of a dismissal should take into account the circumstances in which small businesses operate[1]. It gives the example that small businesses cannot reasonably be expected to run time-consuming investigations while keeping the business going, and that they rarely have HR departments staffed by experienced people[1].
That is a sensible concession, not an exemption. A small employer still needs to tell the employee what the problem is, give a fair chance to respond and consider the response before deciding. What changes is the formality. A short meeting in the owner's office, with a written note of what was said and a written outcome, may be entirely adequate.
Discipline is meant to correct
The Code describes the purpose of disciplinary processes as corrective: they are primarily a means of correcting behaviour through graduated measures, which may include counselling, warnings, suspension and a final warning[1]. It also says formal procedures need not be invoked every time a rule is broken, and that informal advice and correction is often the best way to deal with minor violations[1]. A hearing is the right tool for serious or repeated misconduct. For a first late arrival, a conversation and a note on file may be enough.
Written rules
The Code says it is preferable for employers, especially medium and larger ones, to adopt written disciplinary rules and procedures to create certainty and consistency[1]. If your code is out of date, review it against the 2025 Code before the next hearing, not during it.
Key points
- Tell the employee what the allegation is, in enough detail to understand it[1].
- Allow a reasonable time to prepare, and the assistance of a fellow employee or union representative[1].
- Hear the employee on both the allegation and the sanction before deciding[1].
- Check consistency with past cases before you dismiss[1].
When to get specialist help
A consultant is useful at three points: drafting the charge, chairing or initiating the hearing as an independent person, and reviewing the outcome before it is communicated. Independent chairpersons are particularly valuable where senior managers are involved, where the facts are contested or where the employee is a union representative, in which case the Code expects the union to be informed and consulted first[1]. If the employee refers a dispute, book a LabourLink consultation as soon as the referral arrives so that the file can be prepared while memories are fresh.