Step-by-Step Disciplinary Hearing Checklist for Fair Procedures

A disciplinary hearing is procedurally fair in South Africa when it follows the Code of Good Practice on Dismissals (Schedule 8 to the Labour Relations Act 66 of 1995): the employer must give the employee reasonable notice of the allegations, time to prepare, and the right to be heard (audi alteram partem) and to be assisted by a trade union representative or fellow employee. The chairperson must then apply the three-stage enquiry structure from NUMSA v Drosle Pty Ltd (2013, LAC) — first determine guilt on a balance of probabilities, then decide whether dismissal is an appropriate sanction, then consider mitigation. The sanction chosen must be one a reasonable employer could impose in the circumstances, and the fairness of the whole process is reviewed against the Sidumo test from Sidumo & Another v Rustenburg Platinum Mines Ltd (2007, ZACC 22). A written record of the proceedings must be kept throughout, and the employee must be informed of the right to appeal or refer the matter to the CCMA within 30 days.

The Statutory and Constitutional Foundation

The Labour Relations Act 66 of 1995 (LRA) governs unfair-dismissal disputes and sets the procedural floor in Schedule 8 — the Code of Good Practice on Dismissals, issued under section 95 of the LRA. Schedule 8 is the starting point for any fair-process analysis: it tells the employer what reasonable notice, what opportunity to be heard, and what standard of proof are required before a dismissal will be sustained at the CCMA, the Labour Court, or the Labour Appeal Court.

The Constitution (section 23) protects the right to fair labour practices; this is the underlying value that Schedule 8 gives effect to in the workplace. A disciplinary hearing is not a court of law — it is an internal employer process — but its outcome engages Schedule 8 the moment it is challenged at the CCMA or in the Labour Court. Skipping the procedural steps does not merely give the employee a morale grievance; it gives them a defensible claim that the dismissal was substantively and procedurally unfair.

The Three Principles a Fair Hearing Must Satisfy

Every fair hearing rests on three principles. None of them is optional, and each must be visible on the record:

• Audi alteram partem — the right to be heard. The employee must know the case against them and have a real chance to respond before any sanction is imposed. Silence from the employee does not cure a defective notice; the burden of affording a fair hearing lies on the employer.
• Nemo iudex in causa sua — the chairperson must be impartial. If the chairperson is the complainant, the decision-maker in a related earlier process, or has a personal interest in the outcome, the process is structurally unfair regardless of how the evidence unfolds.
• Balance of probabilities — the standard of proof in internal disciplinary proceedings is not beyond reasonable doubt (that is criminal law). It is on a balance of probabilities, and the chairperson must be explicit about which version of events is accepted and why.

Before the Hearing: Pre-Process Checklist

Most unfair-dismissal findings start with what happened before the hearing, not during it. The pre-process layer is where chairpersons most often lose the case for their employer. Run through these seven steps before you set a date:

1. Confirm there is a substantive reason to discipline. Misconduct (Schedule 8, item 7) or poor work performance (item 9) are the only proper bases. Disciplinary action is not appropriate for ordinary incapacity (illness, lack of skills), which follows a separate counselling and ill-health route.
2. Investigate first. Gather witness statements, documents, CCTV, and emails. A disciplinary hearing is not a fishing expedition; the employer must arrive with a formed case supported by evidence that has been disclosed to the employee in advance.
3. Draft a clear written charge sheet. Every charge must identify the alleged misconduct, the date(s) or period, the rule breached (orally or in a published code or policy), and the potential sanction. Vague, shifting, or multi-charge charge sheets undermine fairness and can be struck out at the CCMA.
4. Issue a Notice of Disciplinary Hearing. At least 48 hours’ notice is the working minimum, but more is preferable. The notice must state the date, time, venue, the charges, the employee’s right to representation, and the consequence — specifically that dismissal is on the table.
5. Confirm representation arrangements. The employee is entitled to a trade union representative or a fellow employee. Legal representation is not a default right at internal hearings, but the chairperson may permit it where the complexity of the charge or a real disparity in representative skill justifies it.
6. Confirm the chairperson’s independence. The same person must not have investigated the matter, preferenced the charge, or stand to benefit from the outcome. If the assigned chairperson has any of those connections, swap them out before the notice goes out.
7. Prepare the bundle. Index the charge sheet, notice, evidence, witness list, the relevant policy or rule, and the employee’s prior record. Paginate the bundle and supply it to the employee in advance so they can prepare a defence.

Pre-process step	What “done well” looks like	What creates a procedural-fairness finding
Investigation	Witness statements, documents, and CCTV gathered before the notice	Hearing used to investigate the charge
Charge sheet	Each charge names the misconduct, dates, rule breached, and possible sanction	Vague allegations, shifting particulars
Notice period	Written notice, ≥ 48 hours, with charges, venue, and right to representation	Verbal-only notice, less than a working day’s notice
Representation	Employee informed in writing; trade union or fellow employee confirmed	Representation refused without good reason
Chairperson	Independent, not the investigator or complainant	Same person investigates and decides
Bundle	Paginated, supplied to the employee before the hearing	Surprise documents introduced for the first time at the hearing

Step-by-Step Disciplinary Hearing Procedure

Once the pre-process layer is in order, run the hearing itself in the order set out below. The numbered sequence mirrors the procedural fairness that the CCMA, the Labour Court, and the Labour Appeal Court will look for on review:

1. Open the hearing. Chairperson confirms identity of parties, records attendees, reads the charge, confirms the employee has received the notice and bundle, and explains how the hearing will run.
2. Plead to the charge. The employee pleads guilty, not guilty, or partially guilty. Record the plea formally on the minute.
3. Employer leads evidence first. Witnesses give evidence-in-chief, are cross-examined by the employee (or their representative), and may be re-examined. Documents are introduced and marked as exhibits.
4. Employee leads evidence. If the employee disputes the charge, they may give evidence and call witnesses under the same rules.
5. Closing arguments. Each side makes a concise closing on whether the charge has been proved on a balance of probabilities.
6. Stage 1 — Guilt determination. The chairperson decides, on the evidence, whether the misconduct is proved. The decision must be reasoned, on the record, and based only on evidence led at the hearing.
7. If not guilty — the chairperson records an acquittal and the matter ends.
8. Stage 2 — Sanction determination. If guilty, the chairperson considers whether dismissal is appropriate, weighing the nature of the misconduct, the employee’s record, the circumstances, and the rule that dismissal should be reserved for serious misconduct or repeated offences after progressive discipline (Schedule 8, item 7(b)).
9. Stage 3 — Mitigation. The employee is given a full opportunity to present personal circumstances and arguments in mitigation before the sanction is finalised.
10. Announce the outcome. Deliver the decision orally at the hearing (or in writing shortly thereafter with reasons), record it in the minute, and confirm the right of appeal or referral to the CCMA within 30 days under section 191 of the LRA.

Procedural-Fairness Quick Checklist (Chairperson’s Side)

Use this as a self-audit at the end of the hearing, before you finalise the minute:

• Notice given in writing, with sufficient detail and lead time
• Independent chairperson confirmed in advance
• Bundle supplied to the employee before the hearing
• Employee was informed of the right to representation and exercised it (or waived it)
• Plea was recorded
• Evidence was led under oath or affirmation (where the employer requires it) and subject to cross-examination
• Stage 1, Stage 2, and Stage 3 were all expressly run in that order
• Written reasons were recorded for both the guilt and the sanction decisions
• The employee was informed of the right to appeal or refer the dispute to the CCMA

Procedural-Fairness Quick Checklist (Employee’s Side)

If you are the employee facing the charge, run through this list during the pre-hearing preparation phase:

• You have the right to a written notice that says what the charge is, when the hearing is, and who will chair it
• You are entitled to be represented by a trade union official or a fellow employee — ask for representation in writing if it has not been offered
• You are entitled to a copy of the bundle in advance so you can prepare your defence
• You may cross-examine the employer’s witnesses and lead your own evidence
• You are entitled to present mitigation before the sanction is decided
• If dismissed, you have 30 days from the date of dismissal to refer the dispute to the CCMA under section 191 of the LRA — do not let the deadline pass without legal advice

Common Procedural Pitfalls That Make a Hearing Unfair

The same handful of mistakes account for most successful challenges at the CCMA. None of them is subtle, and all of them are preventable:

• Charging the employee for the first time at the hearing — allegations must be put in writing in advance
• Changing the charges mid-hearing without restarting the notice period
• Using the same person as investigator, prosecutor, and decision-maker
• Refusing a request for representation without good reason
• Deciding on guilt without hearing from the employee
• Jumping from Stage 1 straight to dismissal without a separate Stage 2 and Stage 3 analysis
• Failing to give written reasons, which makes the CCMA’s review task materially harder

This is where chairpersons — even experienced ones — most often lose cases that should have been won on the facts. A senior person chairing the hearing and applying the three-stage enquiry from NUMSA v Drosle with discipline is what separates a defensible dismissal from one that is overturned on review.

After the Hearing: Record, Sanction, and Remedy

The procedural duties do not end when the chairperson announces the outcome. Three further steps must be completed for the process to be defensible on review:

1. Keep a written minute of the entire hearing — including the plea, the evidence led, the arguments, and the chairperson’s reasoned decision. The minute is the file the CCMA commissioner will read first.
2. Apply the chosen sanction consistently with prior practice. Inconsistent treatment of comparable misconduct is a discrete ground of unfairness, even if the underlying charge is proved.
3. Confirm rights in writing. If a sanction short of dismissal is imposed (warning, final warning, suspension without pay, demotion, counselling), confirm the right of internal appeal in writing. If dismissal is the outcome, confirm the effective date, the right to refer the dispute to the CCMA within 30 days under section 191 of the LRA, and (where applicable) the right to appeal internally first.

Review Standard: How the CCMA and Courts Test Fairness

The CCMA commissioner reviews both the substantive fairness (was the misconduct proved and was the sanction appropriate) and the procedural fairness (was the process fair) of the dismissal. The Sidumo test from Sidumo & Another v Rustenburg Platinum Mines Ltd (2007, ZACC 22) frames the review: would a reasonable employer, on the evidence, have dismissed the employee for the misconduct? The answer is measured against the totality of the evidence and the employer’s disciplinary code.

Two further consequences flow from a successful unfair-dismissal finding:

• Re-instatement is the primary remedy in successful unfair-dismissal disputes (section 193 of the LRA). Compensation is awarded only where re-instatement is inappropriate.
• Automatically unfair dismissal (section 187 of the LRA — for example for participating in a protected strike, making a protected disclosure, or asserting a constitutional right) has no cap on compensation and is assessed on a different statutory footing.

Frequently Asked Questions

How long must an employee be given to prepare for a disciplinary hearing?

There is no single fixed number, but Schedule 8 of the Labour Relations Act and CCMA practice require reasonable notice so the employee can understand the charge and prepare a defence. 48 hours is widely treated as the working minimum for a non-complex charge; more complex charges, or charges carrying a possible dismissal, warrant longer. A hearing held with no notice, or too little notice, is procedurally unfair.

Can an employee insist on legal representation at an internal disciplinary hearing?

Not as a default right. Section 35 of the LRA and CCMA practice allow an employee to be assisted by a trade union representative or a fellow employee. Legal representation is a discretion that the chairperson may exercise where the complexity of the charge, the seriousness of the potential sanction, or a real disparity in representative skill justifies it. Refusing legal representation unreasonably can itself make the process unfair.

What is the three-stage enquiry and where does it come from?

It is the structure set out in NUMSA v Drosle Pty Ltd (2013, LAC): stage 1 — decide guilt on a balance of probabilities; stage 2 — if guilty, determine whether dismissal is an appropriate sanction in light of the nature of the misconduct, the employee’s record, and proportionality; stage 3 — allow mitigation before the sanction is finalised. Skipping any stage renders the process unfair.

What standard of proof applies at a disciplinary hearing?

The balance of probabilities — not beyond reasonable doubt. The chairperson must, however, state on the record which facts are accepted and why, because the Sidumo review test requires the CCMA and the courts to test the decision against the evidence the chairperson actually heard.

How long does an employee have to challenge a dismissal at the CCMA?

Section 191 of the LRA sets a 30-day deadline from the date of dismissal to refer an unfair-dismissal dispute to the CCMA. Late referrals are possible but require an application for condonation showing good cause and reasonable prospects of success; the sooner a dismissed employee takes legal advice the better.

Does the employer have to follow its own disciplinary code?

Yes — the disciplinary code forms part of the contract of employment and the employer must apply it consistently. Departing from the published code without justification, or applying it unevenly between employees in comparable circumstances, is a separate ground of unfairness even if the underlying charge is proved.

Can the chairperson be the same person who investigated the matter?

No. The chairperson must be impartial and must not have been the complainant, the investigator, or the decision-maker in any earlier stage. Using the same person across investigation and adjudication is one of the most common procedural-fairness findings at the CCMA.

Running a fair disciplinary hearing is more often a procedural exercise than a legal one — but the line between the two is thin, and a single missed step (wrong notice, the wrong chairperson, no recorded reasons) can overturn a dismissal at the CCMA. Burger Huyser Attorneys’ Labour Law practice, led by specialist consultant Marius Ferreira, advises both employers chairing or prosecuting hearings and employees facing charges, and prepares for and represents parties at CCMA conciliation and arbitration. The head office is at 49 First Avenue, Linden, Randburg (011 888 0246), with branches across Gauteng. Initial consultations are booked through the head office directly.