Discipline and dismissal for Misconduct in South Africa

The new Code of Good Practice: Dismissal (4 September 2025) has codified and clarified the principles relating to workplace discipline and dismissal for misconduct. Much of this is confirmation of established case law developments and not new law, as specialists in the field would know.

Employers should not regard the new Code as a license to ‘dismiss at will’.  Fairness (procedural and substantive) is still paramount, and guidelines to achieve this are provided in the Code. Each situation will be determined on what was fair in the given circumstances. Hearings also still have a place. Small businesses (not defined in the Code) may have some leeway, but fairness will still be tested, even within a more flexible framework.  

Importantly - the Code does not override an employer's own internal policies (or a valid collective agreement). If those are more onerous and prescriptive, the employer will remain bound by it, regardless of the Code (old or new) - unless these are reviewed and amended.  

FOCUS POINTS OF THE NEW CODE

As stated in the Code, the purpose of discipline is for employees to know and understand what standards are required of them, and to guide their behaviour. There is an emphasis on corrective discipline, where this is appropriate. In alignment with the new Code, here is a summary of the pertinent fairness principles that apply.

Rules and standards

• Employees should understand what is expected of them in relation to the workplace.

• All rules are not necessarily written down.

• The form and content of a disciplinary code may vary due to the size and nature of the organisation. 

• Every breach does not need a formal process - if informal or graduated correction is appropriate, this should be done.

• Serious misconduct or repeated infringements warrant escalation or more formal steps.

• Employers may depart from these rules and procedures if they can justify this (e.g. small businesses have some leeway, or there may be other circumstances justifying adaptation of the usual rules and procedures in specific cases). 

Procedural fairness

In all situations of alleged misconduct, before any decision is taken, an opportunity for genuine dialogue and reflection should be provided for.

• This process does not have to be formal, but appropriate for the circumstances.

• Allegations should be clear to the employee and provide sufficient detail.

• The employee should have a fair and reasonable opportunity to respond to the allegation.

This would therefore apply whenever the employer investigates alleged misconduct and before any type of disciplinary action (including warnings) is taken. Audi alteram partem - both sides must always be considered.

Before a decision to dismiss is taken, the following should also be observed:

• Notification of the allegations (preferably in writing)

• Reasonable time given to the employee to make representations on both (1) the allegations as well as (2) (potentially) sanction.

• Language assistance where possible.

• Assistance by a fellow employee or union representative (shop steward).

The new Code (similar to the previous Code) does not prescribe a formal hearing. In certain circumstances, and depending on the sophistication and position of the employee, even written representations may satisfy the procedural fairness requirements, as long as the points above are adhered to.

However - employers often prefer to do a formal disciplinary hearing when there are a lot of factual disputes to be determined; or when dismissal is contemplated if the employee is found guilty of the misconduct in question. This has less to do with procedural fairness, but rather to ensure that substantive fairness is achieved - i.e. that all of the evidence is properly ventilated prior to making a decision to dismiss. This determination may not be possible if the format of the disciplinary process is informal or by way of written representations only.

Substantive fairness

Substantive fairness means establishing whether the employee has committed misconduct, and if so, to decide on a proportionate sanction. It is all about the merits of the case - if there is a fair reason to take action against an employee.

The Code states that in all cases of alleged misconduct, when any sanction (including warnings) might follow, the following should be determined first:

• The existence of a valid and reasonable rule or standard relevant to the workplace, or regulating workplace conduct. As mentioned earlier, this is not limited to written rules only.

• Consistent application of the rule (i.e. not selective application/enforcement of the rule).

• Whether the employee was aware or can reasonably be expected to be aware of the relevant rule / standard.

• Whether the employee contravened this rule/standard (this is a factual question, based on available evidence).

• If breach of the rule is established, the investigation does not end there. Although the Code does not specify this, it is established law that it must still be determined if this breach was indeed wrongful and if the employee was at fault, in order to establish that misconduct was committed. If the employee has a valid explanation or justification for contravening a rule, then there is no misconduct.

If misconduct has been established, then consider also, when considering appropriate disciplinary action: 

• The importance of the rule that was contravened.

• The (actual/potential) harm caused by the misconduct.

These two points have been specifically added by the new Code, although it is not new in terms of case law.

Substantive fairness for dismissal

In the case of determining substantive fairness of a misconduct dismissal, all of the above will be considered, but in addition, there should be an assessment on the intolerability of a continued employment relationship due to the misconduct committed by the employee. 

Dismissal could be applicable for a single instance or repeated misconduct.

Consistency with past cases is a consideration, but this may be overridden if intolerability of continued employment is evident.

A value judgement on the merits of each case must be applied - it is not a tick-box exercise, and there are no 'one-size-fits-all' scenarios. If an employer wishes to persuade an arbitrator that dismissal was appropriate in a given case, then it needs to demonstrate that various factors have been considered and balanced before the decision was taken.

Again, this approach is established law and the courts (from the Constitutional Court in Sidumo and onwards) have been applying this consistently. There is no limited number of factors to consider when making this value judgement, but the new Code highlights the following to be specifically included:

• The nature and requirements of the employee's job

• The nature and seriousness of the misconduct, the impact on the business

• If progressive discipline might prevent recurrence

• (Lack of) acknowledgement of wrongdoing by the employee

• The employee’s circumstances (service, disciplinary record, effect of dismissal)

• Consistency (but as mentioned, this is not absolute) 

I have used this schematic below in our disciplinary training workshops for many years to explain sanction consideration, and the aspects mentioned above are highlighted in italics.

Conclusion

The new Code endeavours to simplify and codify discipline and dismissal for misconduct, and to reflect case law development in this area of the law. This article is a summary only and does not fully encompass all the dimensions and depth that practitioners may be confronted with in relation to workplace discipline. Further training is always encouraged to align the law with practical workplace scenarios.

I reiterate again that internal disciplinary policies and procedures that are more onerous and prescriptive than the Code, will remain in place and the employer will be tested against those, not the Code, to determine fairness. If you want to get your workplace processes into alignment with the flexibility of the Code, your policies will need to be reviewed and your managers trained accordingly. It’s time!

© Judith Griessel

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