Misconduct is one of the most common causes of workplace disputes and dismissals in South Africa – but understanding what actually counts as misconduct, what procedures employers must follow before disciplining employees, and what rights employees have during the process can prevent costly CCMA battles and unfair treatment.
Schedule 8 of the Labour Relations Act provides the Code of Good Practice on Dismissal, setting out that misconduct must involve a breach of a valid workplace rule that the employee knew or should reasonably have known about, and that the rule must have been consistently enforced.
Critically, dismissal is only appropriate for serious misconduct or repeated offences – the Code explicitly states that generally, it is not appropriate to dismiss for a first offence except where the misconduct is so serious and of such gravity that it makes continued employment intolerable, such as gross dishonesty, physical assault, or gross insubordination. Yet many employers make the fundamental mistake of assuming that proving guilt is sufficient for dismissal, ignoring the requirement to consider mitigating factors like length of service, previous disciplinary record, and personal circumstances before deciding on the appropriate sanction.
This guide explains the key principles of misconduct in South African labour law, drawing on the LRA, case law, and best practice for both employers and employees.
This article provides general information only and should not be considered legal advice.
Key takeaways
- Misconduct refers to employee behaviour that breaches valid workplace rules, policies, or accepted standards of conduct that the employee knew or should have known about.
- Common examples include insubordination, dishonesty, theft, absenteeism, harassment, violence, and misuse of company property.
- Employers must follow procedurally fair disciplinary steps under Schedule 8 including investigation, written notice of charges, a hearing where the employee can respond with representation, and consideration of mitigating factors.
- Sanctions vary from verbal warnings to dismissal depending on severity, context, and employee circumstances – dismissal is generally not appropriate for first offences except for serious misconduct that makes continued employment intolerable.
- Employees have the right to be heard, present their case with representation by a union or fellow employee, receive written reasons for decisions, and appeal internally or refer disputes to the CCMA within 30 days.
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What is misconduct
Misconduct refers to any intentional or negligent behaviour by an employee that violates the rules of the workplace, undermines the trust relationship with the employer, or disrupts operations. The Labour Guide defines misconduct as conduct by an employee that is inconsistent with the express or implied terms of the employment contract.
According to Schedule 8 (Item 7) of the Code of Good Practice on Dismissal, when determining whether dismissal for misconduct is unfair, decision-makers should consider whether the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace, and if a rule was contravened, whether the rule was valid or reasonable, whether the employee was aware or could reasonably be expected to have been aware of the rule, whether the rule or standard has been consistently applied by the employer, and whether dismissal was an appropriate sanction for the contravention.
These four requirements create the framework for assessing substantive fairness in misconduct dismissals. Simply proving that an employee broke a rule is insufficient—the rule itself must be reasonable, the employee must have known about it, it must have been enforced consistently, and the sanction must be proportionate to the offence.
Types of misconduct
Misconduct in the workplace takes many forms, from minor infractions to serious breaches that destroy the employment relationship. Common categories include insubordination – refusing lawful and reasonable instructions from management, showing disrespect to superiors, or deliberately disobeying legitimate orders.
Dishonesty encompasses theft, fraud, misrepresentation, clocking fraud (signing in for absent colleagues or falsifying timesheets), making false claims for expenses or overtime, and lying during investigations or disciplinary hearings.
Absenteeism and poor timekeeping includes unauthorised absence from work, habitual lateness without valid reasons, job abandonment (failing to report for work without notification), and taking unauthorised extended breaks.
Harassment and discrimination covers bullying, sexual harassment under the 2022 Code of Good Practice on Harassment, racial harassment, discrimination on prohibited grounds, and creating a hostile work environment.
Violence and threats includes physical fights or assaults on colleagues, managers, customers, or clients, threats of violence or intimidation, and bringing weapons onto company premises.
Poor conduct and unprofessional behaviour encompasses persistent swearing or using offensive language, intoxication at work from alcohol or drugs, sleeping on duty, and grossly disrespectful or insubordinate conduct.
Misuse of company property includes damaging company equipment deliberately or through gross negligence, unauthorised use of company assets like vehicles or computers for personal purposes, and theft or unauthorised removal of company property.
Misconduct may be classified as minor (warranting warnings or lesser sanctions), serious (warranting final warnings or suspension), or gross (warranting summary dismissal even for a first offence), depending on the facts, context, and impact of each case.
The disciplinary process under Schedule 8
Schedule 8 (Item 4) of the Labour Relations Act outlines the procedural requirements employers must follow when dealing with misconduct. These requirements ensure procedural fairness and protect employees from arbitrary discipline.
Investigation
Item 4(1) states that normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry – it can be as simple as interviewing witnesses, gathering documentary evidence, and assessing the seriousness of the allegation. The investigation establishes the facts before charges are laid.
However, Schedule 8 explicitly recognises in Item 3 that formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for employers to deal with minor violations of work discipline. The Draft Code published in January 2025 reinforces this, emphasising the legitimacy of informal disciplinary processes and recognising that employers may depart from formal rules where justified, though they may need to explain departures if challenged.
Notice of disciplinary hearing
Item 4(2) requires employers to notify the employee of the allegations using a form and language the employee can reasonably understand. The notice must be specific – vague charges like “poor performance” or “misconduct” are insufficient. The employee must know exactly what they’re accused of, when it allegedly occurred, and what evidence supports the allegation.
The employee must be given reasonable time to prepare a response. What constitutes “reasonable” depends on the complexity of the charges, but typically 48 hours for straightforward cases and up to a week for complex matters involving multiple charges or extensive documentation.
Disciplinary hearing
Item 4(3) requires the employee to be allowed an opportunity to state a case in response to the allegations. The employee should be allowed the assistance of a trade union representative or fellow employee. This hearing must be fair, meaning the employer presents the evidence and charges, the employee or their representative can respond, call witnesses, and cross-examine the employer’s witnesses, the chairperson listens to both sides impartially, and a decision is made based on a balance of probabilities (not beyond reasonable doubt, as in criminal cases).
Critically, Schedule 8 does not require criminal-style adversarial hearings with prosecutors, defence attorneys, or courtroom procedures. The 2005 Labour Court case Avril Elizabeth Home for the Mentally Handicapped v CCMA clarified that a criminal-style inquiry is not what is required to ensure procedural fairness under the LRA. Yet many employers and CCMA commissioners still insist on formal, legalistic procedures that Schedule 8 never mandated.
Decision and sanction
After hearing evidence, the chairperson must decide whether the employee is guilty on a balance of probabilities. If guilty, the next step is determining the appropriate sanction. This requires considering aggravating factors (circumstances that make the misconduct more serious, such as premeditation, senior position, impact on others, or breach of trust) and mitigating factors (circumstances that reduce culpability, such as length of service, clean disciplinary record, remorse, personal circumstances, or provocation).
Item 7(5) of Schedule 8 states that when deciding whether to impose dismissal, the employer should consider the gravity of the misconduct and factors such as the employee’s circumstances (including length of service, previous disciplinary record, and personal circumstances), the nature of the job, and the circumstances of the infringement itself.
The decision must be communicated in writing with clear reasons. Item 4(4) requires employees to be advised of any right of appeal and the procedure to be followed.
When is dismissal appropriate
Item 3 of Schedule 8 sets out the progressive discipline framework. Informal advice and correction should be used for minor violations. Repeated misconduct warrants warnings, which may be graded according to severity. More serious infringements or repeated misconduct may call for a final warning or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.
Item 7(4) states explicitly: “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.” Examples of serious misconduct (subject to the rule that each case must be judged on its merits) are gross dishonesty or wilful damage to the property of the employer, wilfully endangering the safety of others, physical assault on the employer, a fellow employee, client or customer, and gross insubordination.
The critical mistake many employers make is believing that proving guilt automatically justifies dismissal. This is substantively incorrect. The Labour Court in SARS v Motsoagae confirmed that a commissioner can find an employee guilty of misconduct but still conclude that dismissal was substantively unfair because the employer failed to properly weigh mitigating factors against aggravating factors.
Consistency in discipline
Item 7(6) requires employers to apply the penalty of dismissal consistently with the way it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
However, the January 2025 Draft Code notes that inconsistency would not necessarily mean dismissal is unfair where the misconduct renders continued employment intolerable. Employers must judge each case on its merits, but consistency remains a strong indicator of fairness.
Employee rights during disciplinary proceedings
Employees have several fundamental rights during misconduct proceedings.
You have the right to be notified of allegations in writing using language and a form you can reasonably understand, to be given reasonable time to prepare your response (typically 48 hours minimum), to representation by a trade union representative or fellow employee during the hearing, to present your case, call witnesses, and cross-examine the employer’s witnesses, to have the matter decided by an impartial chairperson on a balance of probabilities, to receive written reasons for the decision and sanction, and to appeal the decision internally (if your company policy provides for appeals) or refer the matter to the CCMA within 30 days if you believe the dismissal was unfair.
Item 5 of Schedule 8 requires employers to keep records of all disciplinary action for the purposes of consistency and fairness in the application of discipline. These records must include the nature of the misconduct, the actions taken, and the reasons for those actions. Employees can request access to these records to check for consistency.
Who should avoid this and safety notes
For employers
Avoid skipping procedures due to urgency or emotional reactions. Even in cases of gross misconduct like theft caught on camera, you must still conduct a hearing, allow the employee to respond, and consider mitigating factors. Summary dismissals without hearings are almost always procedurally unfair.
Do not fail to train managers and HR staff on what constitutes fair hearings under Schedule 8. Chairpersons who don’t understand the balance of probabilities test, the distinction between aggravating and mitigating factors, or the progressive discipline framework will make unfair decisions that cost you at the CCMA.
Never apply discipline inconsistently. If you dismissed one employee for theft but only gave another a final warning for theft in similar circumstances, you’ve created substantive unfairness that undermines both dismissals.
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For employees
Avoid refusing to attend disciplinary hearings or engaging with the process. Item 4(6) of Schedule 8 allows the employer to proceed with the hearing in your absence if you’ve been given reasonable notice and an opportunity to attend. Your absence weakens your position if you later claim unfairness at the CCMA.
Do not sign documents you don’t understand, especially warnings or dismissal letters that include waivers. If you’re unsure about anything, ask for time to seek advice from a union representative or attorney.
If you believe the process or outcome was unfair, act quickly. Unfair dismissal disputes must be referred to the CCMA within 30 days of dismissal or the final appeal decision. Missing this deadline can bar your claim entirely.
FAQ: What constitutes misconduct in South Africa?
What’s the difference between misconduct and poor performance?
Misconduct relates to behaviour and conduct—wilful breaches of rules, disobedience, dishonesty, or inappropriate actions. Poor performance relates to ability, competence, or capacity—failing to meet work standards despite trying. The procedures and tests for fairness differ: misconduct requires proof of intent or negligence and breach of known rules, whilst incapacity requires evidence that standards were communicated, support was provided, and dismissal is proportionate.
Can I be dismissed for a first offence?
Only if it’s gross misconduct that makes continued employment intolerable, such as theft, assault, gross dishonesty, or wilfully endangering safety. Schedule 8 Item 7(4) states that generally, dismissal for a first offence is not appropriate. For less serious misconduct, progressive discipline with warnings is expected before dismissal becomes justified.
Is a verbal warning valid, or must warnings be in writing?
Verbal warnings are valid for minor misconduct under Schedule 8 Item 3. However, Item 5 requires employers to keep records of disciplinary action, so even verbal warnings should be documented in the employee’s file. Written warnings provide clearer evidence of progressive discipline if matters escalate to final warnings or dismissal later.
What happens if I refuse to attend a disciplinary hearing?
Item 4(6) allows the employer to proceed in absentia (in your absence) if you’ve been given reasonable notice and the opportunity to attend. Refusing to engage doesn’t stop the process and weakens your position at the CCMA if you later claim procedural unfairness. Rather attend, present your case, and challenge unfairness through proper channels.
What if I feel the disciplinary process or outcome was unfair?
Use your company’s internal appeal process first if one exists. If the outcome is still unsatisfactory, you can refer an unfair dismissal or unfair labour practice dispute to the CCMA within 30 days of dismissal or the final appeal decision. The CCMA provides free conciliation and arbitration services to employees.
Sources
- Labour Relations Act 66 of 1995: Schedule 8, Code of Good Practice on Dismissal
- Labour Guide South Africa: The disciplinary procedure for misconduct
- Bowmans Law: Fairness in dealing with employee misconduct and poor performance
- CCMA: Code of Good Practice on Dismissal guidelines
- Consolidated Employers Organisation: Schedule 8 infographic and guidance
