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No enquiry before being fired – no problem!

Labour relations and the fairness standards for dismissal of an employee in South Africa have long been centred around the formality of disciplinary or incapacity enquiry processes, and the tradition of the usage of these processes has built up an expectation that they are mandatory.  

You can’t just resign to avoid disciplinary hearing

A common occurrence in the employment relationship is for an employee to resign in the face of disciplinary action by an employer, and South African courts have previously accepted that as long as an employee resigns with immediate effect, the employer has no power to compel the former employer to go through any disciplinary process.  

Witnesses are key at hearings

Regardless of whether one is faced with a court hearing, a disciplinary hearing or an arbitration hearing it is always very difficult, and often impossible to win without witnesses.

The legal effect of resigning after disciplinary action but before sanction

The Labour Court in a recent judgment, Mthobisi Mthimkhulu v Standard Bank of South Africa (J928/20) (18 September 2020) considered whether an employee who has been found guilty of serious misconduct can avoid the ultimate sanction of dismissal by resigning before the employer imposes the sanction.

Investigating misconduct requires skill

There are a number of important issues relating to disciplinary investigations.

Poor conduct can mean poor management

Consistently poor conduct normally reflects a management that is either unskilled or unwilling to manage employee conduct.

Cross examination at disciplinary hearings

It is a well established and non-negotiable requirement that the employee accused at a disciplinary hearing be allowed to defend himself. This includes challenging the employer’s evidence.

Can false allegations be grounds for dismissal?

Issue - Whether an employee who makes a false allegation of racism against another employee can be dismissed?

Be wary of recorded conversations

Contrary to popular belief, companies may be within their rights to secretly record conversations with employees and use that information against them in a court of law. However, the reverse is also true. This has the potential to significantly change the dynamic in the workplace.

Traversing the labour law jungle

The untrained layperson cannot be expected to travel through the jungle of labour case law without a guide who has a solid labour law track record. The question is, how do you distinguish a true labour law expert from one who will lead you astray? 


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