Disciplinary Hearings: What the Law Requires from Employers

In the dynamic landscape of South African employment law, ensuring fair disciplinary processes is not just a best practice, it's a legal imperative. Employers who fail to adhere to the prescribed procedures risk unfair dismissal claims, costly disputes at the Commission for Conciliation, Mediation and Arbitration (CCMA), or even Labour Court proceedings. This blog post explores the key requirements under the Labour Relations Act 66 of 1995 (LRA), as amended, and the recently updated Code of Good Practice: Dismissal (published in September 2025, replacing Schedule 8 of the LRA). We'll break down what employers must do to conduct disciplinary hearings that are both substantively and procedurally fair.

Whether you're an HR manager, business owner, or legal professional, understanding these obligations can help mitigate risks and foster a compliant workplace. At Legal Drafters, we specialize in crafting tailored disciplinary policies and procedures to align with these legal standards, more on that later.

The Legal Framework Governing Disciplinary Hearings

South African labour law emphasizes fairness in dismissals. Section 188 of the LRA stipulates that a dismissal must be for a fair reason (related to misconduct, incapacity, or operational requirements) and carried out in accordance with a fair procedure. The Code of Good Practice: Dismissal provides detailed guidelines on achieving this, focusing on progressive discipline to correct behavior rather than punish.

The Code distinguishes between counselling (for minor issues or performance gaps) and formal disciplinary action (for serious breaches). For misconduct warranting potential dismissal, a formal hearing is often required, unless exceptional circumstances (like abscondment) make it impractical.

Recent updates in the 2025 Code introduce more flexibility and clarity, consolidating guidance on misconduct, incapacity, and operational dismissals while repealing the old Schedule 8. Employers should review their internal policies to ensure alignment with these changes.

Key Requirements for a Fair Disciplinary Procedure

To comply with the law, employers must follow a structured process. Here's a step-by-step overview:

1. Establish Clear Rules and Standards

Before any hearing, employees must be aware of workplace rules and expected standards of behavior. This is typically outlined in a disciplinary code, which should be communicated to all staff. Some standards, like honesty, are implied and don't need to be written, but explicit policies help avoid disputes. The code should classify offenses by severity and specify potential sanctions.

2. Conduct a Thorough Investigation

Upon suspecting misconduct, employers should investigate promptly and impartially to gather evidence. This may involve interviewing witnesses, reviewing documents, or collecting physical evidence. The goal is to determine if there's a prima facie case warranting a hearing. During this phase, the employee may be suspended on full pay if their presence could jeopardize the investigation or workplace safety.

3. Provide Adequate Notice

If a hearing is needed, give the employee written notice at least 48 hours (or three working days) in advance. The notice must include:

• Date, time, and venue of the hearing.

• Detailed allegations or charges.

• The employee's rights, such as representation by a fellow employee, shop steward, or (in certain cases) external legal counsel.

• The right to an interpreter, if required.

• Access to relevant evidence and the opportunity to call witnesses.

If disciplining a shop steward, consult the union beforehand.

4. Conduct the Hearing Fairly

The hearing should be chaired by an impartial person, ideally not involved in the investigation. Key participants include the chairperson, management representative, the employee (and their representative), witnesses, and an interpreter if needed.

The process typically follows:

• The employer presents evidence first.

• The employee responds, presents their case, and cross-examines witnesses.

• The chairperson clarifies any points and ensures a balanced hearing.

Decisions are made on the balance of probabilities (more likely than not), not beyond reasonable doubt. Record the proceedings meticulously—audio recordings or minutes are recommended.

5. Determine and Communicate the Outcome

If guilt is established, consider mitigating factors (e.g., length of service, remorse) before deciding on a sanction. Possible outcomes include:

• Verbal or written warnings (valid for 3-6 months).

• Final written warning (valid for up to 12 months).

• Suspension without pay, demotion (as an alternative to dismissal), or dismissal.

Communicate the decision in writing, including reasons and the right to appeal internally (if your policy allows) or refer to the CCMA. Warnings must be signed by the employee or witnessed if refused.

6. Handle Appeals and Alternatives

Employees should have the option to appeal the decision. If no internal appeal exists, remind them of external recourse via the CCMA or relevant Bargaining Council. Parties can also mutually agree to an arbitrator-led enquiry for a binding outcome.

Common Pitfalls and Best Practices

Avoid shortcuts like inadequate notice, bias, or denying representation, these can render a dismissal unfair. Train HR teams regularly, maintain consistency in applying discipline, and document everything to defend against claims. Progressive discipline, starting with warnings for lesser offenses, aligns with the Code's emphasis on correction over punishment.

Conclusion: Ensuring Compliance for a Stronger Workplace

Adhering to these requirements not only complies with the LRA and the new Code of Good Practice but also promotes trust and productivity in your organization. With unfair dismissals making up over 50% of CCMA referrals, proactive measures are essential.

At Legal Drafters (www.legaldrafters.co.za), we assist employers in drafting robust disciplinary codes, hearing notices, and policies tailored to the latest legal updates. Contact us today to safeguard your business against labour disputes and ensure your procedures stand up to scrutiny.