What Is the Correct Disciplinary Process in South Africa?

Estimated reading time: 11 minutes

A practical guide to workplace investigations, disciplinary hearings, evidence, fair procedure and disciplinary outcomes.

Workplace misconduct must be handled carefully. An employer may have valid concerns about an employee’s conduct, but this does not automatically mean that disciplinary action or dismissal will be fair.

South African labour law requires both substantive fairness and procedural fairness. There must be a fair reason for the action taken, and the employee must be given a reasonable opportunity to understand and respond to the allegations before a decision is made.

A fair disciplinary process generally involves investigating the facts, notifying the employee of the allegations, allowing reasonable preparation time, considering the employee’s response and selecting a fair and consistent outcome.

Following the wrong process may expose an employer to an unfair dismissal dispute or, where disciplinary action short of dismissal is imposed, an unfair labour practice dispute.

What Law Governs Disciplinary Processes in South Africa?

The main legal framework is the Labour Relations Act 66 of 1995, together with the 2025 Code of Good Practice: Dismissal, which came into effect on 4 September 2025.

The Code confirms that a dismissal must be based on a fair reason and carried out in accordance with a fair procedure. It also recognises that disciplinary processes do not need to follow unnecessary courtroom-style formalities. The appropriate process will depend on the nature of the allegations and the circumstances of the employer.

Employers must also consider their disciplinary codes, employment contracts, workplace policies, collective agreements and applicable bargaining council rules. These documents may contain additional requirements that must be followed.

These are the types of questions that can create serious risk if employers are not prepared.

Step 1: Identify the Nature of the Workplace Problem

The employer must first determine whether the matter genuinely involves misconduct.

Misconduct generally relates to an employee’s behaviour or failure to comply with a workplace rule. Examples may include dishonesty, negligence, insubordination, unauthorised absence, harassment, abusive conduct or failure to follow a lawful and reasonable instruction.

However, poor performance, ill health, injury and other forms of incapacity are not automatically misconduct. These matters usually require different procedures.

For example, an employee who is struggling to meet an expected performance standard may require guidance, counselling, training and a reasonable opportunity to improve. An employee who is unable to work because of illness may require an incapacity process and consideration of reasonable alternatives.

Before disciplinary action is taken, the employer should establish whether:

• a valid and reasonable workplace rule existed;
• the employee knew, or could reasonably have been expected to know, the rule;
• there is evidence that the employee breached the rule; and
• the rule has been applied consistently.

Clear workplace rules help employees understand what is expected of them and assist employers in applying discipline fairly. Read more about why disciplinary codes are important for businesses. 

Step 2: Investigate the Facts Properly

An employer should establish the relevant facts before deciding whether disciplinary action is justified.

The purpose of an investigation is not to prove a conclusion that has already been reached. It is to determine what happened, who was involved, which workplace rules may have been broken and whether there is sufficient reliable evidence to proceed.

Depending on the allegation, an investigation may involve interviewing the employee and relevant witnesses, obtaining statements, reviewing emails or messages, checking CCTV footage, examining attendance records or considering other workplace documents.

The employer should also preserve relevant evidence and consider information that does not support its initial view. Ignoring contradictory evidence may result in an allegation being pursued without a proper basis.

The investigation should begin without unnecessary delay. Excessive delays can affect witnesses’ ability to remember events and may result in evidence being lost.

However, an investigation does not have to resemble a police investigation. A simple matter may require only a few discussions and documents, while allegations involving fraud, harassment or several employees may require a more detailed process.

A proper investigation helps the employer decide whether the matter should proceed to formal disciplinary action, be handled informally or be closed because there is insufficient evidence.

Read more about conducting a proper pre-hearing investigation before disciplinary action. 

Step 3: Choose the Appropriate Process and Notify the Employee

The purpose of discipline is primarily corrective. Minor misconduct may sometimes be addressed through counselling, informal correction, additional guidance or an appropriate warning.

Repeated or serious misconduct may justify a formal disciplinary enquiry. However, the employer should not decide on dismissal before the facts have been considered and the employee has been heard.

Where formal disciplinary action is appropriate, the employee must understand the case they are expected to answer.

The allegations should preferably be provided in writing and should explain:

• what the employee allegedly did or failed to do;
• the workplace rule, policy or instruction involved;
• when and where the conduct allegedly occurred, where known; and
• why the conduct may amount to misconduct.

The allegations do not need to be drafted like criminal charges, but they must contain enough detail for the employee to prepare a meaningful response.

The employee must also receive reasonable time to prepare. There is no single statutory notice period that applies to every disciplinary matter. What is reasonable will depend on the seriousness and complexity of the allegations, the amount of evidence involved and any notice period contained in the employer’s disciplinary procedure or collective agreement.

The employee should ordinarily be allowed assistance from a fellow employee or trade union representative. There is no automatic right to external legal representation during an internal disciplinary enquiry. Any request for outside representation should be considered in accordance with the employer’s procedures, contractual terms, applicable agreements and any discretion available to the chairperson or employer.

Where reasonably possible, the employee should also be able to participate in a language they are comfortable using.

If the employer intends relying on documents, recordings or other material evidence, the employee should generally receive sufficient access to understand and answer that evidence. This remains subject to legal privilege, confidentiality, privacy requirements and other lawful restrictions.

Further guidance is available in SEESA’s article on the disclosure of information before and during disciplinary hearings. 

Step 4: Conduct a Fair Disciplinary Enquiry

A disciplinary enquiry is not a criminal trial. The process does not need to reproduce the formal procedures of a court.

The main requirement is that the employee must receive an adequate and reasonable opportunity to respond before a decision is made.

The enquiry should usually begin by confirming that the employee understands the allegations, received reasonable notice and has been given an opportunity to obtain appropriate representation.

The employer should then explain the allegations and present the material evidence on which it relies. The employee must be allowed to give their version and respond to the evidence. Depending on the nature of the matter, this may include asking relevant questions, presenting documents or calling relevant witnesses.

The chairperson or decision-maker must approach the matter with an open mind and consider both versions objectively. The outcome should not be predetermined.

As a matter of good practice, the investigator or person presenting the employer’s case should, where reasonably practicable, not also make the final finding. This may not always be possible for smaller employers, but the decision-maker must still act fairly and objectively.

An external chairperson is not compulsory in every matter, although one may be appropriate where the allegations are serious, sensitive or complex.

Read more about the importance of an impartial disciplinary chairperson. 

Step 5: Assess the Evidence and Make a Finding

The standard of proof in a workplace disciplinary matter is a balance of probabilities, rather than proof beyond a reasonable doubt.

The question is whether, after considering the evidence as a whole, it is more probable than not that the employee committed the alleged misconduct.

The chairperson should consider the credibility and reliability of witnesses, whether their versions are consistent, whether the evidence is supported by documents or other witnesses and which version is more probable.

Digital evidence such as emails, messages, CCTV footage and electronic records should also be assessed carefully. The employer should be able to explain where the evidence came from and why it can be regarded as reliable.

Hearsay evidence is not automatically excluded from a disciplinary process, but it should be approached cautiously. Its reliability, relevance and possible prejudice to the employee should be considered.

An employee should not be found responsible for misconduct based only on suspicion or assumption. The seriousness of an allegation cannot compensate for weak evidence.

When making the finding, the chairperson should consider whether a valid workplace rule existed, whether the employee knew or should have known the rule and whether the evidence shows that the employee breached it.

If the employer has not proven the allegation on a balance of probabilities, the employee should not be disciplined for that allegation.

Step 6: Decide on a Fair and Consistent Outcome

A finding that misconduct occurred does not automatically mean that dismissal is appropriate.

Before deciding on the outcome, the employee should be allowed to make representations about the appropriate sanction and present mitigating circumstances. The employer may also present aggravating circumstances.

Relevant considerations may include:

• the seriousness of the misconduct;
• the employee’s position and responsibilities;
• the actual or potential harm caused;
• whether the conduct was deliberate;
• the employee’s length of service and disciplinary record;
• whether the employee accepted responsibility or showed remorse; and
• whether progressive discipline is likely to prevent further misconduct.

Possible outcomes may include counselling, a written warning, a final written warning or dismissal.

Any other outcome, such as demotion or unpaid suspension, must have a lawful basis and should not be imposed unilaterally where the employee’s agreement is required.

Dismissal is generally appropriate only where the continuation of the employment relationship has become intolerable. A serious first offence may justify dismissal, but the employer must still consider all the relevant circumstances.

The Constitutional Court confirmed in the Sidumo judgment that the fairness of dismissal must be determined with reference to the circumstances of the particular case. An employer’s preferred sanction is not automatically fair merely because misconduct was proven.

Consistency is also important. Similar cases should generally be treated similarly, although relevant differences in responsibility, disciplinary history, involvement or mitigating circumstances may justify different outcomes.

Active warnings and the employee’s disciplinary record may be relevant. However, an expired warning should not automatically be treated as though it remains active.

Step 7: Record and Communicate the Outcome

The employee should preferably receive the outcome in writing.

The outcome should record the finding, the main reasons for the decision, the disciplinary action imposed and when it takes effect.

Where a warning is issued, the document should state how long it will remain valid, what conduct is expected from the employee and the possible consequences of further misconduct.

An internal appeal is not required in every disciplinary matter. However, where an appeal process is provided for in the employer’s procedure, employment contract or collective agreement, that process should be followed fairly.

The employer should retain the disciplinary notice, material evidence, witness statements, notes or minutes, the finding, the sanction and proof that the outcome was communicated to the employee. These records may become important if the matter is referred to the CCMA or a bargaining council.

Conclusion

The correct disciplinary process is not about following unnecessary technical formalities. It is about establishing the facts, informing the employee of the case against them, providing a meaningful opportunity to respond and reaching a fair, reasonable and properly supported outcome.

Employers should investigate before acting, assess the evidence objectively and avoid deciding on a sanction before the employee has been heard.

This article provides a guideline of principles that an employer can follow but does not replace labour law advice based on the facts of a specific matter. Employment contracts, workplace procedures, collective agreements and bargaining council rules may create additional obligations.

How SEESA Can Assist Employers

SEESA’s labour law professionals can assist employers with workplace investigations, hearing preparation, disciplinary enquiries, appropriate sanctions, dismissals and CCMA disputes.

Obtaining advice before taking serious disciplinary action can help employers follow a fair process and reduce the risk of an avoidable dispute.

Speak to a SEESA Labour Law professional before proceeding with a serious disciplinary matter or dismissal.

Philip Sergeant | National Manager at SEESA | Qualified Attorney (BCom Law, LLB)

Frequently Asked Questions

SEESA can assist employers with practical labour law guidance, compliance support and fair workplace procedures when managing foreign national employment risks. Contact SEESA Labour specialists for practical guidance.