Workplace Investigations Before Disciplinary

Workplace Investigations Before Disciplinary Hearings in South African Labour Law

Workplace Investigations Before Disciplinary Hearings are fact-finding processes used by employers to establish what happened, identify potentially responsible employees, preserve relevant evidence and determine whether there is a sufficient basis to initiate disciplinary action.

A workplace investigation is not itself necessarily a disciplinary hearing, nor should it automatically be treated as a process for proving an employee guilty. Its primary purpose is to establish facts sufficiently reliably for the employer to decide what should happen next.

The current South African framework is particularly important. On 4 September 2025, the Minister of Employment and Labour issued the new Code of Practice: Dismissal, replacing the former Schedule 8 Code of Good Practice: Dismissal. The Code expressly states that an investigation or enquiry does not have to be formal and that its nature should be appropriate to the circumstances, including the nature of the allegation and the nature and size of the employer.

The Code simultaneously preserves a fundamental fairness requirement. Before an employer decides to dismiss for misconduct, the employee should ordinarily be informed of the allegations, preferably in writing, given a reasonable opportunity to prepare and make representations concerning both the allegations and possible sanction, and allowed assistance by a fellow employee or trade-union representative. The allegations must be explained in sufficient detail for the employee to understand them.

This means that Workplace Investigations Before Disciplinary Hearings should not be designed as secret processes that predetermine dismissal.

A properly conducted investigation should enable an employer to distinguish allegation from evidence, identify weaknesses in the case, determine whether other employees may be implicated, investigate explanations that could exonerate the employee and formulate any eventual misconduct allegations accurately.

The Labour Court’s influential decision in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration remains important. The Court rejected the notion that workplace discipline must replicate a criminal trial. That approach is particularly consistent with the 2025 Code, which expressly permits an investigation or enquiry appropriate to the circumstances rather than requiring an elaborate judicial process.

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Why Workplace Investigations Before Disciplinary Hearings Matter

An employer should ordinarily know what happened before deciding what misconduct to allege.

That sounds obvious, but many disciplinary disputes originate from premature conclusions.

A manager receives a complaint that cash is missing and immediately accuses the cashier of theft.

A company discovers confidential files on a competitor’s system and assumes that a recently resigned employee supplied them.

A customer complains about fraudulent invoices and management charges the salesperson who handled the account without first establishing who generated, approved and transmitted the invoices.

In each scenario, an inadequate investigation can contaminate the disciplinary process.

The investigation may later reveal that several employees shared the cash register, that another individual downloaded the confidential files, or that the invoicing problem arose from an accounting system rather than dishonesty.

The 2025 Code requires the eventual fairness enquiry to examine whether the employee contravened a valid and reasonable workplace rule or standard, whether the employee knew or could reasonably have known it, the significance of the rule, the harm caused, consistency and whether dismissal is appropriate. A reliable factual investigation assists the employer in answering each of those questions.

Investigations also matter because the employer will ordinarily carry the responsibility of justifying a dismissal if the matter later reaches the CCMA or bargaining council.

A disciplinary decision based on assumption rather than evidence may become difficult to defend months later when witnesses have left, CCTV footage has been overwritten and emails have been deleted.

The investigation therefore performs two functions.

It assists the employer to make the right internal decision.

It also preserves the evidential basis upon which that decision may later have to be defended.

What the 2025 Code of Practice: Dismissal Requires

The current Code deliberately rejects excessive procedural formalism.

Item 11 describes the purpose of fair procedure as ensuring genuine dialogue and an opportunity for reflection before a decision is taken. It states that an employee must have an adequate and reasonable opportunity to respond to the misconduct allegation.

Most importantly for workplace investigations, item 11(3) states expressly that an investigation or enquiry does not have to be formal.

Its form should correspond with the circumstances, allegation and nature and size of the employer.

A multinational financial institution investigating a sophisticated procurement fraud may therefore reasonably establish a forensic team, image electronic devices, examine banking records, interview numerous witnesses and prepare a detailed investigation report.

A small business investigating whether an employee failed to lock the premises may reasonably conduct a far simpler process.

Fairness is contextual.

The Code does not require small employers to construct miniature criminal-investigation departments before exercising discipline. Equally, a large employer dealing with serious allegations should not rely on the Code’s flexibility as an excuse for superficial fact-finding where reliable evidence is readily available.

The procedure before dismissal ordinarily requires the allegations to be communicated sufficiently clearly, reasonable preparation time and an opportunity to respond.

This means an investigation does not replace the employee’s opportunity to answer the case.

Interviewing an employee during preliminary fact-finding is not necessarily the same as giving that employee an informed opportunity to respond to formulated misconduct allegations once the investigation is completed.

Workplace Investigations Before Disciplinary Hearings Are Fact-Finding, Not Criminal Trials

South African workplace discipline is not criminal litigation.

Avril Elizabeth Home remains the classic authority for that proposition. The Labour Court explained that the post-1995 labour-law framework did not transplant the criminal-trial model into workplace discipline, with all of its technical rules and procedural formalities.

The 2025 Code reinforces that approach by expressly permitting an informal investigation or enquiry appropriate to the circumstances.

This has several practical implications.

An investigator does not need to draft criminal-law indictments.

Witness interviews need not be conducted as courtroom examinations.

The investigator does not have to prove guilt before recommending disciplinary proceedings.

The employer does, however, need enough reliable information to make a rational decision about whether allegations should proceed.

Charges or allegations should ultimately tell the employee what conduct must be answered.

The 2025 Code requires sufficient detail to permit understanding of the allegations, while Avril Elizabeth Home and later Labour Court authority reject an insistence on criminal-charge-sheet technicality.

An investigation should therefore seek clarity rather than artificial legal terminology.

If an employee allegedly approved payments to a fictitious supplier, the investigation should establish which payments, when they were approved, what authority the employee possessed, what documents were used and why the employer contends that the employee acted improperly.

A vague allegation of “dishonesty and breach of trust” may describe the employer’s conclusion without identifying the underlying facts.

The investigation should generate the facts from which the legal or disciplinary characterisation can later be made.

Planning Workplace Investigations Before Disciplinary Hearings

Serious investigations benefit from a defined scope.

The employer should identify the complaint or incident being investigated, the relevant period, potential witnesses, records that may contain evidence and the person responsible for managing the investigation.

The scope should remain capable of expanding where new evidence reveals additional misconduct.

However, uncontrolled “fishing expeditions” create risk.

An allegation that an employee manipulated one procurement process does not automatically justify unrestricted inspection of every aspect of that employee’s private life.

The investigator should preserve potentially volatile evidence immediately.

CCTV footage may be overwritten.

Messaging histories can disappear.

Employees may leave.

Electronic access logs may be retained only temporarily.

Physical documents may be altered or discarded.

The company should therefore issue appropriate preservation instructions where the seriousness of the matter warrants them.

The investigation should also identify the employer’s disciplinary code, collective agreement, employment contract and any industry-specific procedure before evidence is gathered.

The general 2025 Code establishes a flexible standard, but an employer may have agreed contractually or collectively to a more detailed process. In regulated public-sector environments, statutory regulations may prescribe additional mandatory steps. Cases such as Nkosi v Alfred Duma Local Municipality illustrate that failure to follow mandatory disciplinary regulations can create legal difficulties distinct from the general flexible approach applicable to ordinary workplace discipline.

The investigator should therefore know the applicable procedure before recommending action.

A company should not discover on the first day of the disciplinary hearing that its collective agreement required a preliminary procedure that was never followed.

Witness Interviews and Documentary Evidence

Witness interviews are usually central to misconduct investigations.

The investigator should identify persons who directly observed the incident, persons possessing relevant documentary knowledge and persons identified by the employee whose evidence may support an alternative explanation.

Interviewing only witnesses who support the original complaint risks confirmation bias.

Suppose an employee is accused of approving an irregular payment.

The investigation should not stop after interviewing the manager who complained.

It may be necessary to interview the employee who captured the payment, the person who verified banking details, the manager who authorised the transaction and the finance employee who discovered the irregularity.

The employee under investigation may also provide an explanation that identifies documents or witnesses requiring further investigation.

Contemporaneous documents are often more reliable than recollections reconstructed months later.

Relevant evidence can include contracts, policies, emails, purchase orders, invoices, access logs, CCTV recordings, attendance records, electronic messages, system audit trails and meeting records.

The investigation should distinguish original evidence from summaries.

If an investigator’s report says “the employee altered the spreadsheet”, the underlying metadata, audit log or witness evidence supporting that conclusion should be preserved.

The report is not itself a substitute for evidence.

This becomes particularly important at arbitration, where the fairness of dismissal is determined on the evidence properly presented rather than merely on the employer’s internal investigator having reached a conclusion.

In South African Sports Confederation and Olympic Committee v CCMA, the Labour Court emphasised that CCMA arbitration is a de novo enquiry into fairness and that an internal investigation report which the employer did not use at the disciplinary hearing and did not intend to rely upon at arbitration was not itself determinative of the dismissal’s fairness.

Investigators should accordingly gather evidence capable of standing independently of their conclusions.

Digital Evidence, POPIA and Workplace Investigations Before Disciplinary Hearings

Modern workplace investigations frequently involve personal information.

Employers may examine email accounts, access-control data, CCTV footage, telephone records, customer databases, GPS records, instant messages, expense records and information stored on company devices.

POPIA does not prohibit legitimate workplace investigations, but it does regulate how personal information is processed.

Sections 9 and 10 require processing to be lawful and reasonable and require the information processed to be adequate, relevant and not excessive for its purpose. Section 11 recognises several possible lawful justifications for processing, including circumstances where processing is necessary for legitimate interests.

An employer should therefore connect the information collected to the actual investigative purpose.

Investigating suspected procurement fraud does not necessarily justify copying every personal photograph stored on an employee’s device.

Investigating disclosure of confidential documents may justify analysis of relevant email traffic and access logs, but the collection should remain proportionate to the legitimate investigative objective.

POPIA also imposes security obligations. Section 19 requires reasonable technical and organisational safeguards to protect personal information against loss, unauthorised destruction and unlawful access or processing.

Investigation files should consequently not be circulated indiscriminately.

A sensitive report containing allegations, medical information, banking details or witness identities should ordinarily be restricted to persons who require access for legitimate purposes.

Retention matters too.

POPIA regulates how long personal information may be retained and recognises the need to retain records used to make decisions for a period that appropriately allows access or legal use.

This aligns with good labour practice.

Destroying disciplinary evidence immediately after the hearing may create serious difficulty if the employee later refers an unfair-dismissal dispute.

Digital evidence should also be preserved in a manner that permits authentication.

Where authenticity could become disputed, the employer should preserve the original message, file, device image, audit log or export rather than relying solely upon a cropped screenshot.

Investigator Independence, Bias and Predetermination

An investigation should be objective.

That does not mean every employer must appoint an outside attorney, forensic accountant or completely independent stranger.

The 2025 Code deliberately allows procedures appropriate to the size and nature of the employer.

An HR manager can conduct an investigation.

A line manager may investigate straightforward misconduct.

External investigators can be appropriate for allegations involving executives, fraud, sexual harassment, corruption or circumstances where internal independence is genuinely compromised.

The more important question is whether the investigation has become a mechanism for confirming a conclusion already reached.

An investigator should test inculpatory and exculpatory evidence.

A report that describes allegations as proven before interviewing the accused employee or obvious contradictory witnesses will be vulnerable to criticism.

The distinction between investigator and disciplinary chairperson is also often commercially useful, particularly in serious matters, because the chairperson can consider the disciplinary case without having personally built it.

It is not, however, an inflexible statutory requirement applicable to every workplace.

Avril Elizabeth Home cautions against importing criminal-court standards of institutional independence into ordinary workplace proceedings. The fairness question remains whether the employee received the genuine opportunity to understand and answer the case contemplated by labour law.

Where a disciplinary code or collective agreement expressly requires an independent chairperson, the employer should comply with that requirement.

Similarly, allegations against senior executives may justify external investigation because the normal internal reporting lines create genuine conflicts.

Precautionary Suspension During Workplace Investigations Before Disciplinary Hearings

An allegation of misconduct does not automatically require suspension.

The employer should consider why removing the employee from the workplace is necessary.

Possible reasons include risk that the employee may interfere with witnesses, destroy or manipulate evidence, repeat serious misconduct, compromise systems or materially interfere with the investigation.

Precautionary suspension should be distinguished from punishment.

Its purpose is ordinarily to protect the integrity of the workplace or investigation pending determination of the allegations, rather than to impose a disciplinary sanction before guilt has been established.

The Constitutional Court considered precautionary suspension in Long v South African Breweries (Pty) Ltd. It accepted that a pre-suspension opportunity to make representations is not invariably required before a precautionary suspension and observed that where suspension is on full pay, cognisable prejudice will generally be ameliorated.

That principle does not mean every suspension is automatically fair.

The employer must still consider the applicable employment contract, collective agreement, policy or statutory regulation. Some public-sector regimes impose additional suspension requirements, and current decisions continue to distinguish Long where specific contractual or regulatory rights apply.

Suspension should also not become indefinite.

If an employee is suspended to permit investigation, the employer should investigate with reasonable expedition.

Allowing a precautionary suspension to continue for months while no meaningful investigation occurs can create separate fairness and contractual disputes.

Investigation Reports, Disclosure and Employee Access

A common question is whether the employee is automatically entitled to the complete investigation report before the disciplinary hearing.

There is no universal rule that every internal investigation report must always be handed over in full.

The fundamental fairness requirement is that the employee must understand the allegations sufficiently and receive a reasonable opportunity to respond. The 2025 Code states that allegations should be explained in sufficient detail and that the employee should have a reasonable opportunity to prepare and make representations.

In SASCOC v CCMA, the Labour Court held that an investigation report which had not been relied upon during the disciplinary hearing and would not be relied upon at arbitration was not automatically discoverable merely because it existed. The Court stressed the de novo nature of the arbitration process.

The Labour Court applied similar reasoning in Mthini v CCMA in March 2026 where the employer had expressly disavowed reliance upon the investigation report. The Court held that compelling disclosure in the incomplete proceedings was not justified on the basis advanced.

That should not be converted into an overbroad proposition that employers may conceal evidence.

If the disciplinary case relies directly on documents, statements or conclusions that the employee cannot meaningfully answer without seeing the relevant material, procedural fairness may require sufficient disclosure to permit an informed response.

The enquiry is functional rather than formulaic.

Can the employee understand and fairly answer the case?

Investigation reports prepared through attorneys may also raise legal-privilege questions. SASCOC illustrates that privilege and relevance can become contested where external lawyers or investigators are used.

Employers should obtain specific advice before assuming that appointing an attorney automatically makes every fact-gathering document privileged.

Whistleblowers, Confidentiality and Protected Disclosures

Some workplace investigations begin with anonymous complaints or whistleblower reports.

The Protected Disclosures Act 26 of 2000 provides procedures through which employees may make qualifying disclosures concerning unlawful or irregular conduct and protects employees who make protected disclosures from occupational detriment.

Employers should therefore distinguish between investigating the alleged wrongdoing and retaliating against the person who raised it.

The identity of a whistleblower should be protected where legitimately possible, particularly during preliminary investigation.

Absolute confidentiality should nevertheless be promised cautiously.

A later disciplinary process may require the employer to disclose the substance of allegations or lead witness evidence so that the accused employee can answer the case fairly.

The employer should therefore explain that information will be handled on a need-to-know basis rather than guarantee secrecy that cannot legally or practically be maintained.

Where an employee facing discipline alleges that the proceedings themselves constitute retaliation for a protected disclosure, specialised provisions of the LRA and Protected Disclosures Act may arise. Recent Labour Court proceedings illustrate that this can materially affect the procedural landscape.

Such matters warrant early legal analysis rather than being treated as an ordinary misconduct investigation.

Delays in Workplace Investigations Before Disciplinary Hearings

Investigations should be thorough, but they should also proceed without unjustifiable delay.

Delay can prejudice everyone.

Witness memories fade.

Documents disappear.

The accused employee remains under uncertainty.

Suspension may continue.

Management positions remain unresolved.

The Constitutional Court addressed disciplinary delay in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape.

The disciplinary process there suffered an inordinate delay. The Constitutional Court held that the delay rendered the dismissal procedurally unfair in the circumstances, notwithstanding the substantive misconduct finding.

Stokwe does not establish an inflexible deadline applicable to every investigation.

Complex fraud investigations may legitimately take longer than straightforward incidents.

The fairness enquiry considers matters such as the length of the delay, the explanation for it, the nature of the allegations and prejudice flowing from the delay.

An employer should therefore maintain an investigation chronology.

If forensic analysis is delayed because a server must be restored, record that fact.

If an essential witness is medically unavailable, record it.

If an external audit is required, document when it was commissioned and why.

Unexplained inactivity is far harder to defend than demonstrably necessary investigative work.

Employers should also not automatically wait for the police or a criminal prosecution before proceeding internally.

Labour Court authority confirms that the existence of criminal charges does not generally prevent an employer from conducting its own lawful disciplinary process concerning workplace misconduct.

The objectives and procedures are different.

A criminal investigation determines criminal liability.

A workplace process determines whether the employee breached employment obligations and, if so, what workplace consequence is fair.

From Investigation to Disciplinary Hearing

At the end of the investigation, the employer should decide what the evidence actually supports.

There may be insufficient evidence to proceed.

The investigation may reveal a management or systems failure rather than individual misconduct.

It may justify counselling rather than discipline.

It may reveal misconduct by a different employee.

It may support disciplinary allegations.

The investigator’s recommendation should therefore not automatically be “charge and dismiss”.

If disciplinary proceedings are justified, the allegations should be formulated from the evidence gathered.

The employee should ordinarily receive written notice describing the misconduct with sufficient detail, reasonable preparation time and an opportunity to make representations concerning guilt and sanction. The current Code also recognises assistance by a fellow employee or trade-union representative and, where reasonably possible, communication in a language with which the employee is comfortable.

The hearing or enquiry then provides the opportunity for the employee’s case to be tested.

The employee may identify weaknesses the investigation missed.

A witness may change or qualify evidence.

A document may be shown to have another explanation.

The chairperson should therefore determine the matter on the evidence properly placed before the disciplinary process rather than treat the investigation report as a binding verdict.

The sanction question must also remain separate from guilt.

The 2025 Code states that dismissal will generally be appropriate only where continued employment has become intolerable, and identifies factors including the seriousness of the misconduct, the nature of the job, progressive discipline, acknowledgement of wrongdoing and the employee’s personal circumstances.

The Constitutional Court’s Sidumo v Rustenburg Platinum Mines decision remains important because a finding that misconduct occurred does not automatically mean dismissal is fair. The sanction must separately be assessed in context.

A workplace investigation should consequently gather mitigating and contextual information as well as evidence of wrongdoing.

Conclusion: Workplace Investigations Before Disciplinary Hearings

Workplace Investigations Before Disciplinary Hearings are an important part of fair and effective workplace discipline, but South African labour law does not require every employer to conduct a formal forensic investigation before misconduct can be addressed.

The current 2025 Code of Practice: Dismissal expressly states that an investigation or enquiry may be informal and should be appropriate to the allegation and the nature and size of the employer.

The central requirement is fairness.

The investigation should establish the relevant facts.

The employee should understand the eventual allegations.

There should be a genuine opportunity to respond before dismissal.

The process should be sufficiently prompt and objective.

Relevant evidence should be preserved.

Personal information should be processed consistently with POPIA.

Whistleblower protections should be respected.

Suspension should be precautionary rather than disguised punishment.

The investigation report should inform rather than predetermine the disciplinary outcome.

Avril Elizabeth Home remains important because disciplinary proceedings should not be transformed unnecessarily into criminal trials.

At the same time, procedural flexibility does not mean procedural indifference. The 2025 Code expressly describes fair procedure as a process designed to secure genuine dialogue and reflection before a decision is made.

Long confirms that precautionary suspension can appropriately protect an investigation without automatically requiring a pre-suspension hearing, subject to the applicable legal framework.

Stokwe warns against unjustifiable delay.

SASCOC demonstrates that an investigation report is not itself the ultimate evidence determining dismissal fairness.

For employers, the safest principle is therefore simple:

Investigate to discover what happened, not to justify a decision already made.

That approach produces better disciplinary decisions and a considerably stronger evidential position if the dispute ultimately reaches the CCMA, bargaining council or Labour Court.

Must an Employer Investigate Before a Disciplinary Hearing?

An employer should establish a sufficient factual basis before disciplining an employee, but South African law does not prescribe one formal investigation model for every case.

The 2025 Code expressly states that an investigation or enquiry does not have to be formal and should be appropriate to the circumstances, allegation and size and nature of the employer.

Must a Workplace Investigation Be Conducted by an Independent Investigator?

Not in every case.

The 2025 Code does not require every investigation to be conducted by an external independent investigator.

An HR manager or internal manager can investigate appropriate matters.

External independence becomes more important where allegations involve senior management, serious conflicts of interest, fraud or circumstances in which the credibility of the internal process may otherwise be compromised.

Is a Workplace Investigation the Same as a Disciplinary Hearing?

No.

The investigation ordinarily establishes facts and assists the employer in deciding whether discipline is justified.

The disciplinary process gives the employee an opportunity to understand and respond to the misconduct allegations before a dismissal decision is made.

Does an Employee Have to Be Interviewed During the Investigation?

Not necessarily in every preliminary investigation.

However, before dismissal the employee should ordinarily receive a meaningful opportunity to respond to the misconduct allegations.

Interviewing the employee during fact-finding can also be valuable because the employee may identify exculpatory evidence or an alternative explanation that requires further investigation.

Is an Employee Entitled to the Investigation Report?

Not automatically in every case.

In SASCOC v CCMA, the Labour Court held that an investigation report not relied upon in the disciplinary hearing or arbitration was not automatically discoverable simply because it existed. Similar reasoning was applied in Mthini v CCMA in 2026.

The employee must nevertheless receive enough information about the allegations to respond fairly.

Can an Employer Read an Employee’s Work Emails During an Investigation?

Potentially, but POPIA and other applicable privacy principles must be considered.

Personal information must be processed lawfully and reasonably and should be adequate, relevant and not excessive for the investigative purpose.

Access should therefore be related to a legitimate investigative objective rather than amounting to unrestricted intrusion.

Does POPIA Prevent Workplace Investigations?

No.

POPIA regulates the processing of personal information rather than prohibiting legitimate employer investigations.

It requires lawful and proportionate processing and appropriate safeguards to protect personal information.

Can an Employer Use CCTV in a Disciplinary Investigation?

Potentially.

CCTV footage can constitute important evidence, but its collection, use, preservation and disclosure must comply with applicable privacy and data-protection obligations.

The employer should preserve the original footage where authenticity may later be disputed and restrict access appropriately under POPIA’s security requirements.

Can an Employee Be Suspended While the Investigation Takes Place?

Yes, where precautionary suspension is justified.

Long v South African Breweries confirms that a pre-suspension hearing is not invariably required for precautionary suspension and that full pay will generally ameliorate cognisable prejudice.

A contract, collective agreement or statutory regulation may impose additional requirements.

Must Suspension Be on Full Pay?

Precautionary suspension is ordinarily distinguished from disciplinary punishment, and Long specifically considered suspension on full pay when assessing prejudice.

Suspension without pay raises materially different contractual and fairness issues and should not be imposed casually as an investigative measure.

How Long Can a Workplace Investigation Take?

There is no universal statutory period applicable to every private-sector investigation.

The complexity of the matter matters.

However, excessive and unjustified delay can affect procedural fairness. Stokwe confirms that inordinate disciplinary delay can render an otherwise substantively justified dismissal procedurally unfair.

Must an Employer Wait for a Criminal Case Before Holding a Disciplinary Hearing?

Generally, no.

The Labour Court has confirmed that a pending criminal complaint or prosecution does not ordinarily prevent an employer from conducting its own lawful workplace disciplinary process concerning the same conduct.

The criminal and employment processes serve different purposes.

Must Disciplinary Charges Be Drafted Like Criminal Charges?

No.

Workplace disciplinary proceedings do not replicate criminal trials.

The employee must, however, receive allegations in sufficient detail to understand the case and respond meaningfully.

Can an Anonymous Whistleblower Trigger a Workplace Investigation?

Yes.

An employer may investigate credible allegations even where the source wishes to remain confidential.

Where the disclosure qualifies under the Protected Disclosures Act, the employee who made it receives statutory protection against occupational detriment.

The eventual disciplinary process must nevertheless remain fair to the accused employee.

Should an Investigator Interview Witnesses Who Support the Employee?

Where those witnesses are genuinely relevant, doing so is sound investigative practice.

An investigation should test the allegation rather than collect only incriminating material.

Failure to investigate an obvious alternative explanation can weaken the reliability of the employer’s eventual disciplinary case.

Can an Investigation Report Decide That the Employee Must Be Dismissed?

An investigator may recommend disciplinary action, but the disciplinary process should not simply treat the recommendation as a predetermined verdict.

The employee must still have a reasonable opportunity to answer the allegations, and sanction must be separately assessed. The Code and Sidumo make clear that establishing misconduct does not automatically establish dismissal as the fair sanction.

References

Useful Links

South African Government – Code of Practice: Dismissal provides the current Code governing misconduct procedure, probation and incapacity dismissals. Employers should use this rather than relying on the former Schedule 8 Code.

South African Government – Labour Relations Act 66 of 1995 provides access to the primary legislation governing dismissal fairness, unfair labour practices and statutory dispute resolution.

South African Government – Protected Disclosures Act 26 of 2000 provides the legislation governing protected whistleblower disclosures and protection against occupational detriment.

Department of Employment and Labour – Publishes current labour legislation and codes.

If you would like to know more about enforcing CCMA awards click here. 

If you would like to know more about the choice between settlement and trial click here.

If you would like to know more about Constructive dismissal click here.

If you would like to know more about the fairness of dismissal in absentia click here.

For information about unfair labour practices related to training click here,

For queries about legal representation in disciplinary hearings click here.

If your query relates to how UIF is claimed click here.

If your query relates to a matter where the employee in question is a domestic worker click here

If your query relates to whether or not someone is an employee click here.

If you would like to know more about interns and their rights click here.

If you would like to know more about unfair labour practices in general click here.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E&OE).

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