How you handle workplace misconduct can make or break your business. You might be faced with a situation where an employee may steal company property, ignore a reasonable instruction, arrive late often, harass a colleague or misuse company information. When this happens, it’s important to know how to legally approach that situation.
In South Africa, an employer cannot simply dismiss an employee because the misconduct seems serious. The employer needs a fair reason and must follow a fair process. The Code of Good Practice on Dismissal, published in September 2025, gives guidance on misconduct and dismissal under the Labour Relations Act.
What Counts as Workplace Misconduct?
Workplace misconduct refers to behaviour that breaks a rule in the workplace. This could include theft, fraud, dishonesty, assault, harassment, serious insubordination, unauthorised absence, repeated lateness, misuse of company property, safety breaches, sharing confidential information or refusing a reasonable instruction.
Employers must know that not every breach should lead to dismissal. The seriousness of the conduct, the employee’s record and the circumstances all matter. The CCMA notes that serious misconduct, such as theft, fraud, assault, gross dishonesty and gross insubordination, may justify dismissal in some cases. Less serious conduct may require corrective action instead.
A rule also does not always have to be written down. Basic standards, such as not stealing or assaulting someone, can still apply even if they are not listed in a staff handbook.
Start With the Rule
When misconduct is reported, the first question should not be, “Can we fire this employee?” Item 7 of the Code of Good Practice puts the onus on the employer to establish substantive fairness. It’s crucial to ensure that you look at what rule or standard was allegedly broken.
Employers should consider whether the employee broke a valid and reasonable rule, whether the employee knew or should have known about it, whether the rule was applied consistently and whether dismissal is appropriate.
An employer may have a genuine complaint but still struggle to justify discipline if the rule was unclear or applied differently to other workers.
Investigate Before Taking Action
An allegation is not enough to dismiss an employee. Before formal disciplinary action, the employer should investigate what happened. This may include checking emails, attendance records, access logs, financial records, CCTV footage or other evidence. The employer may also need to speak to witnesses.
Keep records of the complaint, evidence reviewed, steps taken and what the employee said. These records may become important if the decision is challenged.
Give the Employee a Fair Chance to Respond
A disciplinary process should give the employee a proper chance to answer the allegation. The current Code places importance on giving employees notice of the allegations and reasonable time to prepare. Employees may also be assisted by a trade union representative or fellow employee, depending on the rules that apply.
The decision-maker should hear both sides before reaching a conclusion. A disciplinary hearing should not be treated as a meeting where the outcome has already been decided.
Use Corrective Action Where Appropriate
Not every case of misconduct should end in dismissal. Depending on the facts, an employer may use counselling, a verbal warning, a written warning, a final written warning, suspension or another suitable sanction.
The idea that every employee must receive “three warnings before dismissal” is misleading. The CCMA states that the law does not set a fixed number of warnings. A serious offence may justify dismissal for a first offence if the circumstances support it.
Consider the Circumstances
The employer may consider the employee’s disciplinary record, length of service, personal circumstances, the seriousness of the rule and the harm caused.
An employee with 15 years of clean service who makes one serious but isolated mistake may be treated differently from someone who keeps breaking the same rule after warnings. Personal circumstances do not excuse misconduct, but they may form part of deciding what sanction is fair.
Suspension Is Not the Same as Punishment
An employee may sometimes be suspended while an investigation or disciplinary process takes place.
This may be needed as a means to protect the investigative process in cases where the employee could interfere with evidence, influence witnesses or repeat the alleged misconduct. The CCMA notes that suspension on full pay may be appropriate where the employee’s presence could put the investigation at risk.
However, suspension before a disciplinary finding should not simply be used as punishment. Employers should also check employment contracts, disciplinary policies and collective agreements before taking action.
Apply Rules Consistently
If an employer normally gives written warnings for a certain offence but dismisses one employee immediately for the same conduct, there should be a clear reason.
This does not mean every employee must receive exactly the same sanction. Different facts may justify different outcomes. The employer should still be able to explain why similar cases were handled differently.
Keep Proper Records
Employers should keep records such as the original complaint, relevant policies, investigation notes, evidence, the employee’s response, hearing notices, findings, warnings, the final sanction and any appeal documents.
Records should use factual language. Instead of saying an employee “has a bad attitude”, record what happened, when it happened, and what evidence supports the finding.
When Can Dismissal Be Justified?
Dismissal is the most serious disciplinary sanction and should not be the automatic response to misconduct.
Decision makers should consider the importance of the rule, whether the employee knew about it, whether it was applied consistently, the harm caused or possible harm, and whether dismissal is suitable.
Proof that misconduct happened is only part of the case. The employer must also be able to explain why the final sanction was reasonable.
What If the Employee Challenges the Decision?
An employee who believes a dismissal was unfair may refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the correct bargaining council.
The CCMA states that employees should be told about their right to refer a dismissal dispute. It also notes a 30-day period for referring to an unfair dismissal dispute. Businesses should therefore organise their records from the start, not only after a dispute is lodged.
Maintaining Workplace Discipline the Right Way
Workplace discipline is not about finding the fastest way to remove a difficult employee. It is about maintaining clear standards while treating employees fairly. For employers, the safest approach is to set clear rules, investigate complaints properly, give employees a chance to respond, consider the circumstances, apply rules consistently and record the reasons behind the final decision.
For employees, a disciplinary charge does not automatically mean dismissal. They should have a fair chance to respond to the allegation. A clear process can help businesses deal with misconduct without creating a second problem through an unfair or poorly handled decision.
