How to dismiss an employee fairly

Two kinds of fairness, both required

The Labour Relations Act tests every dismissal on two questions. Substantive fairness: was there a valid reason - serious misconduct, sustained poor performance, incapacity, or genuine operational requirements? Procedural fairness: did you follow a fair process before deciding? Fail either test and the dismissal is unfair. The classic small-business mistake is winning the first question and losing the second: a thieving employee dismissed on the spot, no hearing, and the CCMA awards compensation anyway because the process was skipped.

Warnings, and when they expire

Dismissal should normally be the last step, not the first. For less serious misconduct the Code of Good Practice expects graduated discipline: counselling or a verbal warning, then written warnings, then a final written warning, then dismissal for a repeat. Warnings must be recorded, given to the employee, and kept on file. They also expire - a validity period of 3 to 12 months depending on severity is common practice, with 6 months typical for ordinary written warnings; your disciplinary code should state the period. An expired warning cannot be counted in the progression. Serious misconduct - theft, assault, gross insubordination, gross dishonesty - can justify dismissal on a first offence, but the hearing still happens first.

The disciplinary hearing

The hearing does not need to look like a courtroom, but it does need the essentials:

• Written notice. Give the employee the charges in clear language and reasonable time to prepare - a few days, not a few minutes.
• The right to be heard. The employee must be able to respond to the allegations, state their case, question the evidence, and call witnesses.
• Representation. The employee may be assisted by a fellow employee or a shop steward. There is no general right to an external lawyer at an internal hearing.
• An interpreter if the employee needs one to follow the proceedings.
• An impartial chairperson - not the complainant, and ideally not the person who investigated.
• A decision with reasons, communicated in writing, with the sanction proportionate to the offence and consistent with how you have treated similar cases before.

After the dismissal: the CCMA

A dismissed employee has 30 days from the date of dismissal to refer an unfair dismissal dispute to the CCMA (or the relevant bargaining council). Conciliation comes first; if that fails, most dismissal disputes go to arbitration. The employer must prove the dismissal was fair. If it was not, the commissioner can order reinstatement, re-employment, or compensation of up to 12 months' remuneration for an ordinary unfair dismissal - and up to 24 months for an automatically unfair one, such as dismissal for pregnancy or union membership.

Why the paper trail decides cases

Arbitration is decided on evidence, and the employer carries the burden. A written contract, a disciplinary code, signed warnings, the notice of hearing, minutes of the hearing, and a written outcome - that bundle wins cases. Without it, the case becomes your word against the employee's, and the employer who cannot produce a single document rarely persuades a commissioner that a fair process happened. Every step of discipline should generate a document the moment it happens, not a reconstruction six months later.

Retrenchment is a different process entirely

Dismissal for operational requirements - retrenchment - is not misconduct and does not use a disciplinary hearing. Section 189 of the LRA requires a written notice inviting consultation, then a genuine joint attempt to avoid or minimise the retrenchments: alternatives, selection criteria, timing, and severance. Fair selection criteria (commonly last-in-first-out unless agreed otherwise) and severance pay of at least one week's remuneration per completed year of service are required. Dressing a misconduct problem up as a retrenchment, or a retrenchment up as misconduct, is one of the fastest routes to an adverse award.

Get the paperwork before the problem

ProperSA's disciplinary and warnings pack (R450) gives you the code, warning templates, and hearing documents; the retrenchment pack (R450) covers the section 189 process; single documents start from R190. The cheapest CCMA case is the one your file wins before it starts.

Frequently asked questions