Are your disciplinary processes up to Code?
Failure to manage disciplinary hearings in line with current legislation can have costly consequences for employers, potentially resulting in the forced reinstatement of or compensation for dismissed staff — even those accused of criminal conduct.
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Following the gazetting of the updated Code of Good Practice: Dismissals (Schedule 8) on 4 September 2025, it is essential that companies align their internal policies with these new standards. Employers who fail to integrate these principles into their daily operations risk losing control of the disciplinary process, effectively giving unrepentant employees the upper hand.
“The Code calls for fair reasons and fair procedure when considering the dismissal of an employee whose conduct cannot otherwise be improved,” says Elani Vogel, senior forensic manager at Loxton Forensics.
What is fairness?
For disciplinary hearings, the Code states that a dismissal is fair if:
- It is backed by a fair reason relating to the conduct of an employee
- It is in accordance with fair procedure
- It is not automatically unfair for any of the reasons described in the Code or the Labour Relations Act, Section 187.
- The misconduct is so serious that continuing the employment relationship is intolerable.
At its core, fair procedure is simply one in which “the employee has been given an adequate and reasonable opportunity to respond to the allegation of misconduct.”
The Code also prescribes that, before being dismissed, an employee should be:
- Notified of the allegations in writing
- Given the opportunity to defend themselves against the allegations and punishment
- Allowed assistance from a fellow employee or trade union representative
- Allowed to discuss the matter in a language they know, if possible
However, these seemingly simple requirements aside, the Code considers a variety of conditions that make objective fairness harder to define.
“It is up to the employer to ensure its policies, procedures and practices can stand up to scrutiny in a CCMA hearing,” says Vogel.
The risk of unfairness
An employee who believes they were treated unfairly may decide to approach the CCMA.
Even if, on the merits of the case, they are indeed guilty of misconduct, their dismissal could be declared unfair if their employer did not adhere to fair procedure. “The matter now rests not on what the employee did but what the employer failed to do, flipping the power dynamic,” says Vogel.
What happens next depends on the CCMA’s decision. If it rules that an employer has not followed a fair procedure, that renders the dismissal unfair. For less serious misconduct, the CCMA could order that the employee be reinstated to their former post.
For serious misconduct, such as fraud, it may decide that the employee should remain dismissed but still be paid compensation - a cost no company wants to bear.
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Risk management
The best approach is for the employer to ensure they are fairness-oriented from the beginning.
“We advise our clients to regularly audit not just their disciplinary policies and procedures but also the language used to describe them – overcomplicated procedures or ambiguous terms can give an employee all the leverage they need,” says Vogel.
Policies and procedures need to be simplified, concise and unambiguous while allowing for deviations in appropriate circumstances. This increases the efficiency of hearings while providing safeguards against abuse.
Objectivity
Consistency - applying the same disciplinary measures to the same offenses - is a key theme of the Code and essential to fairness.
Engaging an independent and impartial chairperson to lead disciplinary hearings is the best way to ensure consistency remains unchallenged and objectivity is maintained.
Even where the Code allows for more informal processes, as is the case with small businesses, having an independent chairperson oversee hearings ensures that labour laws are applied correctly.
“It’s a service many of our clients rely on as a risk management measure,” says Vogel.