Purpose: A written warning is a formal record of misconduct or performance issues. It forms part of progressive discipline and must be issued fairly.
When to use: After a verbal warning has failed to correct behavior, OR for a first offense that is more serious than minor misconduct but not gross misconduct.
Validity period: Typically 6 months for a first written warning, 12 months for a final written warning. Specify this in your company policy.
⚖️ Legal requirement: The employee must be informed of the misconduct, given opportunity to respond before the warning is issued, and receive a copy. Keep proof of delivery.
Incident Details
Consequences & Acknowledgement
⚠️ Disciplinary Hearing Notice (Notice to Attend)
Purpose: This notice formally invites an employee to a disciplinary hearing. It is a mandatory step before any dismissal for misconduct.
When to use: When you intend to hold a formal disciplinary hearing that could result in a final written warning or dismissal.
Timing: Issue at least 48 hours (preferably 2-5 working days) before the hearing to give the employee time to prepare their defence.
⚖️ Legal requirement (Schedule 8 LRA): The employee must know the charges in advance, have reasonable time to prepare, and be informed of their right to representation. Failure to do this = procedurally unfair dismissal.
Hearing Details
Charges / Allegations
Employee Rights (Mandatory)
Acknowledgement
⏸️ Precautionary Suspension Letter
Purpose: Suspend an employee from duty while an investigation or disciplinary process takes place. Suspension is a precautionary measure, not a punishment.
When to use: When the employee's presence at work may interfere with the investigation, pose a risk to others, or where trust has broken down pending the hearing.
Key rule: Suspension must be WITH FULL PAY unless your employment contract explicitly allows unpaid suspension (rare).
⚖️ Legal warning: Unpaid suspension without contractual authority or employee consent is unlawful and may be challenged as unfair labour practice. Keep suspensions as short as possible.
Reason for Suspension
Conditions of Suspension
Duration & Contact
🚫 Dismissal Letter
Purpose: Formally notify an employee of their dismissal following a disciplinary hearing or retrenchment process.
When to use: ONLY after a fair hearing has been conducted and the decision to dismiss has been made. Never issue this without completing the proper process first.
Timing: Issue as soon as reasonably possible after the hearing outcome is decided - delays can be challenged.
⚖️ Critical: Inform the employee of their right to refer the matter to the CCMA within 30 days. Failure to follow fair procedure may result in reinstatement or compensation of up to 12-24 months' salary.
Reason for Dismissal
Final Pay & Benefits
Appeal Rights & CCMA (Mandatory)
💰 Payslip
Purpose: Provide employees with a breakdown of their earnings and deductions for a pay period.
Legal requirement: Under BCEA s33, employers must provide written pay information including gross pay, deductions, and net pay.
⚖️ Deductions (other than statutory) generally require written employee consent or a court/arbitration order. Keep records for 3 years.
Earnings
Deductions
⚖️ CCMA & Labour Law Guidance
Quick reference for disciplinary procedures, dismissals, suspensions, and CCMA processes under South African labour law (Labour Relations Act 66 of 1995).
📅 CCMA Referral Deadline
Unfair dismissal disputes must be referred within 30 days of dismissal date.
📝 Unfair Labour Practice
Refer within 90 days of the act/omission giving rise to the dispute.
🔔 Notice Period (Basic)
1 week if employed ≤ 6 months; 2 weeks if 6mo–1yr; 4 weeks if > 1 year.
💼 Retrenchment (s189)
Employer must consult in good faith before any dismissal for operational requirements.
🔴 Dismissal Procedures▼
Fair Dismissal Requirements
Under South African law, a dismissal must be both substantively fair (valid reason) and procedurally fair (correct process followed).
Valid Reasons for Dismissal
Misconduct – Breach of workplace rules or policies
Issue written notice to attend disciplinary hearing (min. 48 hours)
Inform employee of charges and right to representation
Allow employee to present defence and call witnesses
Appoint impartial chairperson
Consider mitigating factors before deciding
Provide written outcome with reasons
Inform employee of right to appeal and refer to CCMA
⚠️ Warning: Dismissing without following correct procedures may result in the CCMA ordering reinstatement or compensation of up to 12 months' salary (24 months for automatically unfair dismissals).
Automatically Unfair Dismissals (s187)
Dismissals are automatically unfair if the reason relates to:
Pregnancy, intended pregnancy, or any reason related thereto
Trade union membership or participation in lawful union activities
Exercising rights under the LRA or participating in legal strike action
Refusing to do work normally done by striking employees
Race, gender, sex, religion, disability, age, sexual orientation, etc.
Whistleblowing (Protected Disclosures Act)
⏸️ Suspension Procedures▼
When to Suspend
Suspension should only be used as a precautionary measure, not as punishment. Consider suspension when:
The employee's presence may interfere with the investigation
There is a risk to other employees, company property, or operations
The alleged misconduct is serious and trust has broken down
Suspension Checklist
Ensure suspension is with full pay (unpaid suspension is unlawful unless agreed or provided in contract)
Provide written suspension notice with reasons
Specify duration or state "pending investigation/hearing"
Conduct the investigation and hearing promptly
Review suspension regularly – it should not be indefinite
Allow employee to respond to suspension if requested
ℹ️ Key Principle: Suspension is not a disciplinary sanction. An employee remains employed and entitled to full remuneration during suspension.
Sample Suspension Letter Content
Date of suspension
Reason for suspension (general terms, not detailed charges)
Confirmation that suspension is on full pay
Expected duration or "pending investigation"
Instruction not to enter premises without permission
Contact details for queries
📉 Retrenchment (Section 189)▼
Operational Requirements
Retrenchment is dismissal for operational requirements – economic, technological, structural, or similar needs of the business.
Mandatory Consultation Process
Issue s189 Notice – Written notice to employees/union of contemplated retrenchment
Disclose Information – Reasons, alternatives considered, number affected, selection criteria, timing, severance pay
Consult in Good Faith – Allow meaningful engagement on alternatives and selection
Consider Alternatives – Voluntary severance, redeployment, reduced hours, etc.
Use Fair Selection Criteria – LIFO (Last In First Out) is common but not mandatory
Provide Severance Pay – Minimum 1 week's pay per completed year of service
⚠️ Large-Scale Retrenchments (s189A): If retrenching 10+ employees (employer with 50+ staff), a facilitator from CCMA may be required and there are additional procedural requirements.
What the s189 Notice Must Include
Reasons for proposed retrenchment
Alternatives employer has considered
Number of employees likely affected
Job categories affected
Proposed selection criteria
Proposed timing of dismissals
Proposed severance pay
Any assistance to be offered (e.g., job search support)
🏛️ CCMA Referral & Process▼
What is the CCMA?
The Commission for Conciliation, Mediation and Arbitration resolves labour disputes through conciliation (mediation) and arbitration (binding decision).
Referral Time Limits
Unfair dismissal: 30 days from date of dismissal
Unfair labour practice: 90 days from act/omission
Discrimination (EEA): 6 months from act/omission
ℹ️ Late Referrals: The CCMA may condone late referrals if good cause is shown, but this is not guaranteed. Always aim to refer within the prescribed period.
CCMA Process Flow
Referral – Employee files LRA Form 7.11 at CCMA
Conciliation – Parties meet with commissioner to attempt settlement (30 days)
Certificate – If unresolved, commissioner issues certificate of non-resolution
Arbitration Request – Party requests arbitration within 90 days of certificate
Arbitration – Formal hearing; commissioner makes binding award
Employer Preparation Checklist
Gather all documentation (warnings, hearing records, policies, contracts)
Prepare chronology of events
Identify witnesses and prepare witness statements
Review company policies and procedures
Consider settlement options at conciliation
If proceeding to arbitration, prepare bundles and arguments
Possible Outcomes
Reinstatement – Employee returns to work, back-pay may be ordered
Re-employment – Employed in similar position
Compensation – Up to 12 months' remuneration (24 for automatically unfair)
Dismissal upheld – Employer's decision confirmed
📊 Poor Performance (Incapacity)▼
Key Principle
Poor performance is an incapacity issue, not misconduct. The focus is on whether the employee can perform, not refusal to perform.
Required Process
Identify Shortfall – Document specific performance gaps against standards
Counsel Employee – Informal discussion about the issue
Issue PIP – Performance Improvement Plan with clear, measurable targets
Provide Support – Training, mentoring, resources as needed
Monitor – Regular review meetings during PIP period
Progressive Warnings – If no improvement, issue verbal → written → final warnings
Incapacity Hearing – If still no improvement, hold hearing before dismissal
ℹ️ Fair Process: The employer must prove the employee was aware of the required standard, given a fair opportunity to meet it, and provided with necessary assistance.
PIP Requirements
Specific performance areas requiring improvement
Measurable and achievable targets
Reasonable timeframe (typically 1-3 months)
Support and training to be provided
Scheduled review dates
Consequences of non-improvement
⚠️ Warnings & Progressive Discipline▼
Progressive Discipline Principle
Discipline should be corrective rather than punitive. Use the least severe sanction that addresses the misconduct, escalating only if behavior continues.
Written Warning – Formal written warning (valid 6 months typically)
Final Written Warning – Last chance before dismissal (valid 12 months typically)
Dismissal – For repeat offense or serious first-time misconduct
⚠️ Serious Misconduct: For gross misconduct (theft, assault, fraud, etc.), dismissal may be appropriate for a first offense without prior warnings. However, a disciplinary hearing is still required.