Disciplinary Hearings

Fair, defensible disciplinary processes that protect employers and respect employees’ rights.

A dismissal must be both substantively and procedurally fair. A well-run disciplinary process is the best protection against an unfair dismissal claim, and many CCMA cases are lost on procedure alone.

What a fair process requires

  • A valid reason: a rule that was broken, that the employee knew or should have known about.
  • Proper notice: clear charges and reasonable time to prepare.
  • A fair hearing: an opportunity to state a case, call witnesses and be assisted by a fellow employee or shop steward.
  • An impartial chairperson: who considers the evidence and gives reasons.
  • An appropriate sanction: consistent with past practice and proportionate to the offence.

Code of Good Practice: Dismissal

The Code of Good Practice: Dismissal guides employers on fair reasons and procedures for dismissal. Smaller employers may use a less formal process, but the core requirements of fairness still apply.

Precautionary suspension

An employee may be suspended on full pay pending an investigation or hearing where there is a justifiable reason, such as a risk of interference with evidence.

When we can help

We assist with:

  • Drafting charges and notices of a disciplinary hearing.
  • Chairing or initiating hearings independently.
  • Advising on suspension and investigations.
  • Incapacity processes for poor performance or ill health.
  • Disciplinary codes and workplace policies.
  • Representing employees in disciplinary hearings.

The disciplinary process

Five steps to a fair outcome.

  1. Investigation
    Establish the facts, gather evidence and decide whether disciplinary action is warranted.
  2. Notice
    Give the employee written notice of the charges, the hearing date and their rights.
  3. Hearing
    The employer presents its case, the employee responds, and both may call witnesses.
  4. Finding and sanction
    The chairperson decides guilt and, after hearing mitigating and aggravating factors, an appropriate sanction.
  5. Outcome
    The outcome is communicated in writing, including the employee’s right to refer a dispute to the CCMA.

Not every case requires a formal hearing. We help employers choose a process that is proportionate to the business and the issue.

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What to prepare

Documents that support a fair process.

  • The employment contract and disciplinary code.
  • Evidence of the alleged misconduct.
  • Witness statements.
  • The employee’s disciplinary record.
  • Records of how similar cases were dealt with.

Common Questions

Generally, employees are entitled to be represented by a fellow employee or shop steward. Legal representation may be allowed where the disciplinary code permits it or the matter is complex.
Yes, for serious misconduct such as gross dishonesty, assault or wilful damage to property, where the employment relationship has broken down. Less serious offences usually call for progressive discipline.
If the employee was properly notified and has no good reason for not attending, the hearing may proceed in their absence.
The chairperson should be impartial and not involved in the incident. Many employers use an external chairperson for serious or sensitive matters.
There is no fixed period, but the employee must have a reasonable time to prepare, usually at least a few working days, depending on the complexity of the charges.

NEED HELP WITH A DISCIPLINARY MATTER?

We help employers run fair, efficient disciplinary processes and represent employees facing disciplinary action.

Read more: The new Code of Good Practice: Dismissal · Precautionary suspension of employees

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This page is general information and not legal advice.

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