Disciplinary Hearings and CCMA Disputes: A Practical Guide for Employers

Employment disputes are often won or lost before a matter reaches the CCMA. A rushed investigation, vague charge, inconsistent sanction or incomplete record can turn a manageable workplace issue into an expensive dispute.

JL van Niekerk Attorneys Inc. acts exclusively for employers in labour and employment matters. This guide explains the practical steps an employer should consider when misconduct may lead to disciplinary action or dismissal.

The legal framework changed in September 2025

On 4 September 2025, the Minister of Employment and Labour issued a new Code of Good Practice: Dismissal under the Labour Relations Act. The new Code repealed the former Schedule 8 dismissal code and the separate 1999 operational-requirements code.

The central rule remains clear: a dismissal must rest on a fair reason and follow a fair process. The Code recognises that workplace procedures need not imitate a criminal trial, and that the circumstances and resources of the employer matter. Flexibility does not remove the need for fairness, evidence and a defensible decision.

Before starting disciplinary action

An employer should first establish what actually happened. That usually requires identifying the relevant workplace rule or standard, collecting documents and electronic records, interviewing witnesses and giving proper attention to facts that may assist the employee as well as those supporting the allegation.

The employer should then ask:

Was the rule valid and reasonable?
Was the employee aware, or could the employee reasonably have been expected to know, of the rule?
Has the rule been applied consistently?
What evidence supports each element of the alleged misconduct?
Is formal discipline proportionate, or would guidance or a warning address the problem?

A disciplinary charge should describe the alleged conduct with enough clarity for the employee to understand and answer it. Copying a generic charge from an unrelated matter creates avoidable procedural and evidential problems.

Precautionary suspension requires a reason

Suspension pending an investigation should not be automatic. It may be appropriate where the employee’s presence creates a genuine risk of interference with witnesses or evidence, repetition of the alleged conduct, or harm to people or property. A precautionary suspension is ordinarily on full pay and should last no longer than reasonably required for the investigation and process.

What a fair disciplinary process should achieve

The employee should receive the allegations and a reasonable opportunity to prepare and respond. The employer should follow any applicable employment contract, disciplinary code, collective agreement or bargaining-council requirement. Internal rules may create obligations beyond the general statutory standard.

The process should allow the employer to present its evidence and the employee to challenge it, give an explanation and call relevant witnesses. The decision-maker should determine whether the allegation is established on a balance of probabilities. If misconduct is established, the parties should have an opportunity to address sanction before a final decision is made.

A useful record includes the notice, charges, evidence, attendance record, material submissions, findings, reasons and outcome. The record should show how the decision was reached, rather than merely state the result.

Dismissal is not the automatic sanction

Even serious-sounding misconduct does not make dismissal inevitable. The employer should consider the seriousness and circumstances of the breach, the nature of the job, the harm or risk caused, consistency, the employee’s disciplinary record, length of service, acknowledgement of wrongdoing and prospects of correction.

Progressive discipline remains relevant where correction is reasonably possible. Dismissal may be justified for serious misconduct or repeated misconduct where continued employment has become intolerable, but the employer should be able to explain why a lesser sanction was unsuitable.

Common employer mistakes

Deciding on dismissal before completing the investigation or hearing.
Using vague or inaccurate charges.
Ignoring the employer’s own disciplinary code or a collective agreement.
Treating similar cases differently without a defensible reason.
Relying on suspicion where documents or witnesses could have been obtained.
Allowing delay to weaken the evidence or create an impression that the conduct was tolerated.
Failing to distinguish misconduct, poor performance and incapacity, which require different enquiries.
Recording the outcome without recording the material reasons.

When the dispute reaches the CCMA

An employee who challenges a dismissal will generally have 30 days to refer an unfair-dismissal dispute to the CCMA or the relevant bargaining council. The matter will ordinarily begin with conciliation. If it is not resolved, the next forum and procedure depend on the nature of the dispute.

The employer should secure the record immediately, identify the witnesses, prepare a reliable chronology and test whether the reason and procedure can be proved. A file that was assembled carefully during the workplace process is substantially easier to defend than one reconstructed after referral.

When should an employer obtain legal advice?

Advice is most valuable before irreversible action is taken. Employers should consider obtaining assistance before suspending an employee, finalising charges, commencing a retrenchment, dismissing for misconduct or incapacity, or responding to a CCMA referral.

Early advice does not require every workplace issue to become formal or adversarial. It helps the employer choose the correct process, preserve the evidence and avoid mistakes that are difficult to repair later.

Frequently asked questions

Must a disciplinary hearing follow a courtroom procedure?

No. The process must be fair and must give the employee a meaningful opportunity to answer the allegations. The required formality depends on the workplace rules, any collective agreement and the circumstances.

Can an employee be dismissed for a first offence?

Potentially, where the misconduct is sufficiently serious and dismissal is a fair sanction in the circumstances. The label attached to the offence is not enough. The employer must assess the evidence, seriousness, consistency and relevant mitigating and aggravating factors.

Can a hearing continue if the employee does not attend?

Possibly, after the employer establishes that proper notice was given and considers the reason for the absence. Proceeding without the employee should be a reasoned decision, not an automatic response.

Does JLVN represent employees?

No. JL van Niekerk Attorneys Inc. acts exclusively for employers in labour and employment matters.

Employer-side labour advice in Hermanus and the Overberg

We assist employers with investigations, disciplinary charges and hearings, poor performance and incapacity processes, retrenchments, workplace policies, CCMA and bargaining-council disputes, and Labour Court matters.

View our employer labour-law services or contact our Hermanus office before the process becomes difficult to correct.

Primary sources

This article provides general information and does not replace advice on the facts of a particular matter.