18 February 2026
·
7 min read
A step-by-step guide for South African employers on running a procedurally and substantively fair disciplinary hearing — and avoiding costly CCMA claims.
Raymond Hauptfleisch
Admitted Attorney · Qualified HR Practitioner
The disciplinary hearing is one of the most consequential HR processes your business will undertake. Get it right, and you protect the business from expensive CCMA disputes. Get it wrong — even if the employee deserved to be dismissed — and you face potential reinstatement orders or significant compensation awards. Here is what the law requires and what best practice looks like.
The Labour Relations Act 66 of 1995, together with the Code of Good Practice: Dismissal (Schedule 8), sets out the requirements for a fair dismissal. Two tests apply: substantive fairness (was there a valid reason to dismiss?) and procedural fairness (was the correct process followed?).
Failing either test can result in an unfair dismissal finding at the CCMA — even if the employee was genuinely guilty of the misconduct alleged.
The employee must receive written notice of the hearing with enough time to prepare — generally at least 48 hours, and in practice at least 3–5 working days for serious matters. The notice must clearly state the charges, the date, time, and venue of the hearing, and the employee's right to be represented by a co-employee or shop steward.
Vague charges are a procedural trap. 'Gross misconduct' is not a charge — 'gross insubordination in that on [date] you refused a lawful instruction from [manager]' is a charge.
The hearing must be chaired by someone who was not directly involved in the incident and who can assess the matter impartially. Using the complainant as chairperson is a procedural error that CCMA commissioners take seriously.
For smaller businesses where independence is difficult to achieve internally, an external chairperson — such as OptiHR — is the appropriate solution.
The hearing is not a criminal trial, but it must be fair. The employer presents the case first, calling witnesses and presenting evidence. The employee then has the right to respond, call witnesses, and cross-examine.
The standard of proof is 'balance of probabilities' — not beyond reasonable doubt. You do not need a confession. You need evidence that makes it more probable than not that the employee committed the act alleged.
The sanction must be proportionate to the offence and consistent with how similar cases have been handled. Dismissing one employee for an offence for which others received warnings is inconsistent and legally vulnerable.
Progressive discipline applies in most cases — first written warning, final written warning, then dismissal. Summary dismissal (immediate dismissal without prior warnings) is reserved for serious misconduct such as theft, assault, dishonesty, or gross insubordination.
Record the charges, the employee's plea, the evidence presented, the chairperson's findings, and the sanction. The outcome letter must be handed to the employee in writing, confirming the finding and any right of appeal.
Your hearing record is your evidence file at the CCMA. Without it, your case rests on memory alone.
OptiHR provides experienced, independent hearing chairpersons for businesses across Johannesburg and Gauteng. Contact us before the hearing — not after.
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