How to run a disciplinary hearing in South Africa

Most employers who lose at the CCMA do not lose on the facts — they lose in the disciplinary hearing that happened weeks earlier. The misconduct was real, but the process was defective, so the dismissal is found unfair. In South African law a dismissal must be both substantively and procedurally fair, and the burden of proving both rests on the employer. This guide walks through a disciplinary hearing that stands up.

Before you charge anyone: investigate

Do not convene a hearing on a hunch. Gather the evidence first — statements, records, CCTV, system logs, whatever proves what happened. A hearing built on "everyone knows he did it" collapses the moment it is tested under cross-examination.

At this stage decide what you are actually dealing with. Misconduct is a choice — the employee broke a known rule. Poor performance is a capability gap and runs on a completely different (incapacity) process. Charging poor performance as misconduct is a common and fatal error.

Step 1 — Written notice of the hearing

Give the employee written notice, and give it far enough in advance that they can genuinely prepare — 48 hours is a common minimum. The notice must set out:

• The specific charges, in enough detail that the employee can answer them
• The date, time and place of the hearing
• Their right to representation by a fellow employee or shop steward
• Their right to call witnesses and present evidence
• That the outcome may include dismissal

Step 2 — Appoint an impartial chairperson

The chairperson must be someone who was not involved in the incident and has no stake in the outcome. The single quickest way to lose a case is to let the complainant, the investigator or the employee's direct manager chair the hearing. If your business is small and everyone was involved, appoint an external chairperson.

The chairperson runs the hearing, weighs the evidence, and decides. They are not there to prosecute.

Step 3 — Run the hearing fairly

Keep it structured and keep a record. A workable order of proceedings:

• The chairperson explains the process and confirms the employee understands the charges
• The employer presents its case and its evidence
• The employee (or their representative) questions the employer's witnesses
• The employee presents their side and any witnesses
• The employer questions the employee's witnesses
• Both sides sum up

Step 4 — Decide on a balance of probabilities

This is not a criminal court. The standard is the balance of probabilities — is it more likely than not that the employee committed the misconduct? The chairperson decides guilt first, and only then turns to sanction.

Step 5 — Decide the sanction

Dismissal must fit the offence. For serious misconduct — theft, fraud, assault, gross dishonesty — dismissal for a first offence can be fair, because the trust relationship cannot survive it. For lesser misconduct, progressive discipline (warning, final warning, dismissal) is the norm.

Two things the chairperson must weigh: consistency (what did you do the last time someone did this?) and the employee's record. Dismissing one person for what another received a warning for hands the other side their case.

Step 6 — Put the outcome in writing

Issue a written outcome: the finding, the sanction, the reasons, and the employee's right to refer the matter to the CCMA or relevant bargaining council within 30 days. Keep every document — notice, evidence, minutes, outcome. That file is your entire defence if it goes further.

Frequently asked questions

Can an employee bring a lawyer to a disciplinary hearing?

Generally no. At an internal hearing an employee is entitled to be represented by a fellow employee or a trade union representative, not an external attorney, unless your disciplinary code or the circumstances allow it. Legal representation is a separate question at the CCMA.

How much notice must you give for a disciplinary hearing?

Enough for the employee to prepare a defence. There is no fixed statutory period, but 48 hours is a widely accepted minimum; complex matters may need more. Too little notice is itself a procedural unfairness.

Can you dismiss for a first offence?

Yes, for serious misconduct such as theft, fraud, assault or gross dishonesty, where the trust relationship is broken. For lesser misconduct, progressive discipline is expected. You must still run a full hearing — a first offence changes the sanction, not the procedure.

What happens if we skip the hearing?

You risk a finding of procedural unfairness even where the reason to dismiss was valid — which means compensation of up to 12 months' pay. Suspend the employee on full pay pending a hearing if you need them out of the workplace; do not dismiss without process.

This article is general information on South African labour law and is not legal advice on your specific situation. Speak to us about your facts.