Managing Employees

Running a Fair Disciplinary Process for Misconduct

Misconduct dismissals are the most common source of CCMA disputes, and most are lost by employers on procedure, not substance. The Code of Good Practice: Dismissal (Schedule 8) — as clarified by Avril Elizabeth Home for the Mentally Handicapped v CCMA — sets a workable, non-technical standard: the employee must know the case against them and get a genuine chance to respond before a decision is made.

Key facts

Substantive fairness requires a valid reason connected to the employee's conduct, and that dismissal was an appropriate sanction given the circumstances (not necessarily the only possible outcome).
Procedural fairness does not require a criminal-trial-style hearing — Avril Elizabeth confirmed that a fair opportunity to state a case, before someone who can decide impartially, is enough.
Consistency matters: treating similar misconduct very differently between employees, without a good reason, undermines fairness (though it doesn't require identical outcomes for every case).
For serious misconduct, suspension pending an enquiry can be appropriate — but should be on full pay and for as short a time as reasonably possible, not used punitively.
The employer carries the onus of proving the dismissal was fair if the employee disputes it at the CCMA (LRA s 192(2)) — good contemporaneous records (charge, notice, minutes, outcome letter) are what wins these cases.

The law that applies

LRA Code of Good Practice: Dismissal (Schedule 8) — items 1–7
Labour Relations Act 66 of 1995 — s 188, s 192(2)

Leading cases

Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833 (LC)

Pre-dismissal procedure requires only that the employee is told the case against them and given a genuine opportunity to respond — not a criminal-style trial with legal representation, cross-examination and formal rules of evidence.

Sidumo v Rustenburg Platinum Mines Ltd [2007] ZACC 22; 2008 (2) SA 24 (CC)

A CCMA commissioner decides the fairness of the dismissal afresh on all the evidence, giving appropriate weight to the employer's disciplinary code, but is not simply reviewing whether the employer's decision was reasonable.

Practical steps

Investigate before charging — don't decide the outcome first and build the case afterward.
Give written notice of the charge, with enough detail for the employee to prepare a response.
Hold the hearing before someone who wasn't the investigator and can decide impartially.
Let the employee respond, bring representation (a co-employee or union representative), and call witnesses.
Give a written outcome with reasons, and keep the full record — charge, notice, minutes, outcome.

Frequently asked questions

Do I need to hold a formal hearing with a chairperson, or can I just have a conversation?

A structured process — written notice of the charge, a scheduled meeting, someone impartial hearing both sides, a written outcome — is strongly advisable even though the law doesn't require full trial formality. It's your main evidence of fairness later.

Can the same manager who investigated also chair the hearing and decide the sanction?

It's risky. Where possible, separate the roles — the person who investigated or laid the charge shouldn't also be the one deciding guilt and sanction, to avoid a fair perception of bias.

What if I don't have a written disciplinary code?

You can still discipline fairly without one, but a written code (with examples of misconduct and typical sanctions) makes your process far more defensible and helps ensure consistency between cases.

Have a specific employee situation?

Ask Chat to Lex. It will take your specific facts and give you a cited assessment — not just the general position above — free.

Ask about running a fair disciplinary process for misconduct

This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney or labour law specialist.