10 March 2026
·
8 min read
South African labour law is clear: you cannot dismiss an employee for breaking a rule they were never told about. If your workplace rules exist only in your head, you are already exposed. Here is what every South African business needs in writing.
Raymond Hauptfleisch
Admitted Attorney · Qualified HR Practitioner
One of the most common things we hear from employers who have just lost a CCMA case is: 'But everyone knows you can't do that.' The problem is that 'everyone knows' is not a legal standard. South Africa's Labour Relations Act and the Code of Good Practice: Dismissal require that workplace rules be known to employees, or that employees could reasonably be expected to know them — and in practice, a rule that is not written down and communicated is a rule that cannot reliably be enforced.
For a workplace rule to be enforceable in South African labour law, it must meet four criteria. It must be lawful — not in conflict with legislation or constitutional rights. It must be valid — connected to the legitimate operational requirements of the business. It must be reasonable — not arbitrary or disproportionate. And crucially, employees must have been made aware of it.
Miss any one of these and the rule breaks down. That fourth criterion — awareness — is where most employers come unstuck. Courts expect employers to prove that employees knew the rule existed, understood what it required, and were aware of the consequences for breaking it.
Every South African employer needs a written disciplinary code that sets out categories of misconduct (minor, serious, and gross misconduct), the standard consequences for each, and the procedure that will be followed when misconduct occurs.
Without a disciplinary code, every disciplinary hearing becomes a negotiation. Employees argue that the conduct was not clearly prohibited, or that others were treated differently for similar behaviour. Commissioners regularly find in favour of employees where the employer had no written standard to point to — or where the written standard was not consistently applied.
South African courts have upheld dismissals for social media misconduct — employees posting defamatory content about the company, sharing confidential client information, or creating hostile environments for colleagues online. But only where a clear, communicated policy existed that prohibited the conduct.
Without a social media policy, an employee who posts damaging content about your business may face no formal consequences at all, because you cannot discipline someone for breaking a rule they were never told about. In 2026, every business with a digital footprint — which is all of them — needs a social media and online conduct policy.
The Basic Conditions of Employment Act sets minimum leave entitlements, but it does not specify how leave must be requested, approved, or managed. A clear leave policy closes these gaps — setting out how far in advance leave must be applied for, how conflicting applications are resolved, when leave can be denied for operational reasons, and what happens to accumulated leave on resignation or dismissal.
Without a leave policy, managers apply leave rules inconsistently, employees build up unexpectedly large leave balances, and disputes arise at the worst possible moments — often at resignation, when accumulated leave becomes a cash liability.
Employees have a right to raise grievances without fear of retaliation. A written grievance procedure gives them a structured channel to do so — and gives you a structured process for resolving complaints before they escalate into formal disputes, CCMA referrals, or constructive dismissal claims.
Constructive dismissal — where an employee resigns and claims they were effectively forced out — is one of the most expensive outcomes an employer can face. A functional grievance procedure creates evidence that the employer took complaints seriously and gave the employee an opportunity to resolve issues internally.
Poor performance and misconduct are legally distinct in South Africa and must be handled differently. Dismissing an employee for poor performance using a disciplinary process designed for misconduct is a common mistake that leads to unfair dismissal findings.
A performance management policy sets out how performance is measured, how underperformance is identified and communicated, what support and time the employee will be given to improve, and at what point the employment relationship may be terminated. It creates a paper trail that protects the employer if the process ends in dismissal.
OptiHR develops custom HR policies built for your business — not copy-paste templates. We also manage implementation, obtaining signed acknowledgements from staff so the rules are provably known. Book a free consultation.
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