Before dismissal: building a fair disciplinary process

Under South African labour law, a dismissal may be unfair when it lacks a fair reason or a fair procedure. The facts, workplace rules, collective agreements and applicable Code of Good Practice all matter.

Start with the alleged conduct

Identify the rule or standard, whether it was valid and reasonable, whether the employee knew or could reasonably have known it, and whether it has been applied consistently.

Investigate before deciding

Gather documents, system records and witness accounts while they are available. An investigation should test alternative explanations and not merely assemble a case for a predetermined outcome.

Give adequate notice and an opportunity to respond

The employee should understand the allegations and have a reasonable opportunity to prepare and state a case. Representation rights, language needs and applicable workplace procedures must be considered.

Assess an appropriate outcome

Dismissal is not automatically appropriate whenever misconduct is proven. Seriousness, consistency, the employment relationship, relevant personal circumstances and possible corrective measures should be considered.

Keep a reliable record

Record the allegations, evidence, response, findings and reasons for the sanction. Clear records support internal consistency and become important if the dispute proceeds to the CCMA or a bargaining council.