A procedurally unfair dismissal can cost your business tens of thousands of rands at the CCMA. This step-by-step guide shows you how to run a compliant disciplinary hearing — even without an HR department.
Why Procedure Matters as Much as Substance
In South African labour law, a dismissal can be unfair in two distinct ways: substantively (the reason for dismissal was not valid) or procedurally (the process followed was not fair). The Labour Relations Act 66 of 1995 (LRA) and the Code of Good Practice: Dismissal require employers to follow a fair procedure before dismissing an employee for misconduct. Failing to do so — even when the employee was genuinely guilty — can result in reinstatement or compensation awards at the CCMA.
For SMBs without dedicated HR support, the disciplinary process is one of the highest-risk areas of people management. This guide walks you through each step.
Step 1: Investigate Before You Charge
Before issuing any notice, conduct a preliminary investigation to establish whether there is a prima facie case of misconduct. This does not need to be a formal process — it may be as simple as reviewing CCTV footage, speaking to witnesses, or examining records. The purpose is to ensure you are not charging an employee based on a misunderstanding or incomplete information.
If the alleged misconduct is serious enough to warrant suspension pending investigation, you may place the employee on precautionary suspension with full pay. Unpaid suspension before a hearing has been found to be procedurally unfair by the CCMA.
Step 2: Issue a Written Notice to Attend
The employee must receive a written notice that clearly states the following: the specific allegation(s) of misconduct in sufficient detail for the employee to prepare a response; the date, time, and venue of the hearing; the employee's right to be represented by a fellow employee or trade union representative (not a legal practitioner, unless your disciplinary code provides for this); and sufficient notice — generally at least 48 hours — to allow the employee to prepare.
Step 3: Conduct the Hearing
The hearing must be presided over by a chairperson who was not involved in the investigation — ideally a senior manager or an external chairperson. The process should follow these steps in order.
| Stage | What Happens |
|---|---|
| Opening | Chairperson introduces parties, explains the process, confirms the employee received the notice |
| Plea | The charge is read out and the employee pleads guilty or not guilty |
| Employer's case | Employer presents evidence and witnesses; employee may cross-examine |
| Employee's case | Employee presents their version and any witnesses; employer may cross-examine |
| Closing statements | Both parties summarise their cases |
| Finding | Chairperson finds the employee guilty or not guilty on each charge |
| Sanction | If guilty, employee may make representations in mitigation before sanction is decided |
Step 4: Apply an Appropriate Sanction
The sanction must be proportionate to the offence. South African law recognises a principle of progressive discipline — minor misconduct should typically result in a verbal warning, then a written warning, then a final written warning, before dismissal is considered. However, serious misconduct (such as theft, assault, or gross insubordination) may warrant dismissal at first offence.
When deciding on sanction, consider the nature and seriousness of the offence, the employee's disciplinary record, length of service, and any mitigating or aggravating circumstances.
Step 5: Communicate the Outcome in Writing
The outcome of the hearing — including the finding, sanction, and reasons — must be communicated to the employee in writing. If the employee is dismissed, the written notice must include information about their right to refer the matter to the CCMA within 30 days.
How PeoplePulse Supports Your Disciplinary Process
PeoplePulse can answer your employees' questions about the disciplinary process — what their rights are, what to expect at a hearing, and what the appeals process looks like — instantly and accurately, based on your company's disciplinary code. This reduces anxiety, improves procedural compliance, and frees your managers to focus on the substance of the matter rather than explaining process.
