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What Employers Should Do Before Dismissing an Employee
An employer may believe that dismissing an employee is justified, but belief alone will not prove that the dismissal was fair.
Before confirming a dismissal, the employer should conduct a final review of three issues: whether there is a legally fair reason, whether the procedure followed was appropriate for that reason and whether the workplace records can prove how and why the decision was made.
This review should take place before the dismissal is finalised. It gives the employer an opportunity to identify risk areas, reconsider alternatives and obtain advice where the reason, procedure or supporting records are incomplete.
Speak to a SEESA Labour Law professional before confirming a dismissal where the reason, procedure or supporting workplace records are uncertain or not sufficient.
The Three Requirements for a Fair Dismissal
Section 188 of the Labour Relations Act 66 of 1995 provides that a dismissal that is not automatically unfair will be unfair unless the employer can prove that it was based on a fair reason related to the employee’s conduct or capacity, or the employer’s operational requirements. The employer must also prove that a fair procedure was followed.
The Code of Practice: Dismissal, which took effect on 4 September 2025, provides further guidance on assessing the fairness of dismissals for misconduct, incapacity and operational requirements.
1. Can the Employer Clearly State and Prove the Reason?
Before confirming a dismissal, the employer should be able to explain the reason in clear and specific terms.
A general statement such as “the employee is no longer suitable”, “management has lost confidence” or “the employment relationship has broken down” may not be sufficient. The employer must identify the facts that led to the proposed dismissal and connect those facts to a legally recognised reason.
The employer should determine whether the matter concerns misconduct, poor work performance, ill health or injury, another form of incapacity, or the operational requirements of the business. These categories require different considerations and procedures.
The purpose of the final review is not to repeat the entire investigation or hearing again. It is to confirm that the stated reason is the true reason for dismissal and that the available evidence supports it.
Is the evidence reliable and complete?
In a misconduct matter, the employer should be able to show that a valid and reasonable rule or standard existed, that the employee knew or could reasonably have been expected to know the rule and that the available evidence supports the allegation.
The employer should not rely only on an accusation, suspicion or unsupported management opinion. Relevant documents, witness evidence, messages, electronic records, attendance records, CCTV footage or other evidence should be considered where applicable.
Evidence that contradicts the employer’s initial view should also be addressed. Ignoring information simply because it does not support dismissal may weaken the employer’s case if the matter is later referred to the CCMA or a bargaining council.
Where the evidence has not yet been properly gathered or tested, the employer should reconsider whether the matter is ready for a final decision. For more detailed guidance on establishing whether there is a sufficient case to proceed, read why a proper pre-hearing investigation is essential before disciplinary action
Does the stated reason match the facts?
Employers should be careful not to describe an incapacity or operational issue as misconduct.
An employee who cannot meet a performance standard may require a poor-performance process rather than disciplinary action. An employee whose health affects their ability to work may require an incapacity process and consideration of reasonable accommodation.
Similarly, retrenchment should not be used to remove an employee because of poor performance, misconduct, personality conflict or dissatisfaction with the employee. There must be a genuine operational reason based on the economic, technological, structural or similar needs of the business.
Where mental health may be contributing to attendance, conduct or performance concerns, employers should consider the guidance given in SEESA’s article on mental health dismissal in South Africa.
Is dismissal an appropriate response?
Even where the employer can prove the allegation, dismissal is not automatically fair.
The employer should consider the seriousness of the matter, the harm or risk caused, the employee’s position, length of service and disciplinary record, and whether the problem could reasonably be corrected.
In misconduct matters, progressive discipline may be appropriate where the purpose of discipline can still be achieved through counselling, guidance or a warning. However, sufficiently serious misconduct may justify dismissal for a first offence.
The Constitutional Court confirmed in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others that the fairness of dismissal must be determined with reference to all the circumstances. An employer’s preferred sanction is not automatically fair merely because misconduct has been proven.
The employer should therefore be able to explain why dismissal was considered appropriate and why a lesser corrective measure was not selected.
Has the employer acted consistently?
The employer should review how it dealt with similar matters in the past.
Consistency does not necessarily mean that every employee must receive the same sanction. Different sanctions may be justified by differences in the employees’ conduct, responsibilities, disciplinary records, involvement or mitigating circumstances.
However, any difference in treatment should have a reasonable explanation. The reason should be recorded rather than reconstructed only after the dismissal is challenged.
Clear workplace standards help employers manage this risk. Read more about why disciplinary codes are essential for businesses.
2. Was the Procedure That Was Followed Appropriate to Address the Allegations Against the Employee?
The employer’s second question should be whether the procedure already followed corresponds with the true reason for dismissal.
There is no single procedure that applies to every dismissal. A disciplinary hearing may be appropriate for misconduct, but it will not ordinarily satisfy the requirements of a poor-performance, ill-health or retrenchment process.
For misconduct, the employee should have been informed of the allegations and given an adequate and reasonable opportunity to respond before a decision was made. The employer should consider the employee’s version and representations regarding the possible sanction.
For poor work performance, the employer will generally need to show that the employee knew the required standard, was informed of the shortcomings and received appropriate guidance, support and a reasonable opportunity to improve.
For ill health, injury or another form of incapacity, the employer should investigate the extent and probable duration of the incapacity and consider reasonable alternatives before dismissal.
For operational requirements, consultation must take place while retrenchment is still contemplated. The employer must remain open to proposals and consider reasonable ways to avoid or reduce dismissals.
Employers dealing specifically with misconduct should consult SEESA’s separate guide on the correct disciplinary process in South Africa, which covers investigations, notices, disciplinary enquiries, evidence and sanctions in detail.
The final pre-dismissal review should confirm that the correct process has already been completed. It should not be used to create documents afterwards or disguise a process that was never properly followed.
3. Do the Workplace Records Prove That the Dismissal Is Fair?
Complete workplace records are central to a defensible dismissal.
Once an employee establishes that a dismissal occurred, section 192 of the Labour Relations Act places the burden on the employer to prove that the dismissal was fair. This means the employer may need to produce evidence of the reason for dismissal and the procedure followed.
A workplace file should do more than confirm that a meeting or hearing took place. It should allow an independent person to understand the full decision-making process.
The record must establish the applicable rule or standard
The employer should retain the documents that show what was expected from the employee. Depending on the reason for dismissal, these may include the employment contract, disciplinary code, workplace policies, job description, performance standards, operational procedures or collective agreements.
The employer should also be able to demonstrate that the relevant rule or standard was communicated or that the employee could reasonably have been expected to know it.
For poor-performance matters, the file should identify the standard the employee was expected to meet and explain how performance was measured.
For operational-requirement dismissals, the file should contain records supporting the business rationale, such as relevant financial, structural or operational information.
The record must contain the evidence considered
The employer should preserve the evidence used to reach the decision. This may include incident reports, investigation notes, witness statements, emails, messages, attendance information, performance records, CCTV footage or other relevant documents.
The file should also include material evidence that was disputed or that did not support the employer’s original view. A complete record is generally more credible than one containing only information selected to support dismissal.
Employers should avoid altering, backdating or recreating documents after the decision. Where a verbal discussion took place, a dated note should be made as soon as reasonably possible and should accurately reflect what was discussed.
The record must show that the employee was heard
The file should contain the notice or communication provided to the employee, proof that it was delivered and records of the employee’s response.
Minutes or notes should reflect the material issues raised by both parties. The record does not necessarily need to be a word-for-word transcript, but it should accurately capture the allegation or concern, the employee’s explanation and the material evidence considered.
In an incapacity or performance matter, the file should record consultations, guidance, support and opportunities provided to the employee.
In a retrenchment matter, it should record the proposals raised during consultation, the employer’s responses and the reasons particular alternatives were accepted or rejected.
The record must show that alternatives were considered
A dismissal file should not create the impression that dismissal was the only outcome management was willing to consider.
The employer should record any alternative measures considered. Depending on the circumstances, these might include counselling, training, a warning, additional performance support, adjusted duties, reasonable accommodation, alternative employment or operational cost-saving measures.
Where an alternative was not reasonably suitable, the file should explain why. A general statement that “no alternatives were available” may not be persuasive without supporting information.
The record must explain the final decision
The written outcome should identify the reason for dismissal and briefly explain why the employer reached that conclusion.
In a misconduct matter, the record should show why the allegation was proven, what mitigating and aggravating circumstances were considered and why dismissal was appropriate.
The employer should also record relevant consistency considerations, including how comparable cases were handled and why any different treatment was justified.
In incapacity and operational-requirement matters, the outcome should explain why the alternatives considered were not reasonably capable of preventing dismissal.
A properly reasoned outcome is more useful than a document stating only that the employee was “found guilty” or that management “decided to terminate employment”.Further guidance is available in SEESA’s article on the disclosure of information before and during disciplinary hearings.
Final Pre-Dismissal Audit
Before confirming the decision, the employer should be able to answer the following questions:
- Can we clearly identify the true and legally recognised reason for dismissal?
- Do reliable facts and evidence support that finding?
- Did we follow the procedure appropriate to that finding?
- Did the employee receive a genuine opportunity to provide information and respond?
- Did we properly consider reasonable alternatives to dismissal?
- Does the workplace file clearly explain and prove the final decision?
A “no” or uncertain answer does not necessarily mean that dismissal can never take place. It does, however, indicate that the employer should review the matter and obtain appropriate labour law advice before finalising the decision.
Conclusion
Before dismissing an employee, an employer should conduct a final audit of the finding, the procedure and the available workplace records.
The employer must be able to establish more than a genuine concern or a belief that dismissal is justified. The reasoning must be legally fair, the process must match that reasoning and the records must clearly show what happened, what the employee said, what alternatives were considered and why dismissal was selected.
A properly prepared workplace file does not make an otherwise unfair dismissal fair. It does, however, help demonstrate that the employer made a careful, consistent and properly supported decision.
This article provides general information and does not replace labour law advice based on the circumstances of a specific matter. Employment contracts, workplace procedures, collective agreements and bargaining council rules may create additional obligations.
SEESA’s labour law professionals can assist employers in reviewing proposed dismissals, identifying procedural or documentary gaps and determining whether further action is required before a decision is finalised.