Discipline and Dismissal

The Sanction.

The sanction to be imposed is a matter for the Chairman to decide, and contrary to popular belief the evidence has nothing to do with deciding on the sanction to be imposed. The sanction must be fair and equitable – and also non-discriminatory, consistent with past similar offences by other employees under similar circumstances, and consistent with the employer's Disciplinary Code and Procedures. This means that if your Code and Procedure states first offense = verbal warning; second offense = written warning; third offense = final written warning and fourth offense = dismissal, then you MUST follow that. You can't dismiss the defaulter on the second or third offense.  

The notion that an employee must receive three written warnings before dismissal can take place is a myth, as well as the notion that a verbal warning must have been issued before a written warning can be given. An employee can be dismissed even for a first offense and even with no prior warnings or prior offenses. It all depends on the evidence led at the hearing, the seriousness of the offense, the circumstances under which it was committed,  the mitigating and aggravating circumstances, and the elements of consistency, fairness and discrimination mentioned above.


It is vitally important that the employer act in accordance with his Disciplinary Code and Procedure EVERY TIME an offence is committed. NO EMPLOYEE must be permitted to "get away with it" under any circumstances and management must never adopt the attitude that "we will overlook it this time – after all, he/she has never done it before" The foregoing is fatal. If this is done, then by overlooking the trespass or by ignoring it or allowing it to slip by, the employer is in fact condoning the offense – and very soon the offense becomes the accepted standard.


Remember that you must be  consistent – if it is overlooked for one, then it must be overlooked for all. In accordance with Schedule 8 of the Labour Relations Act, all employers should have in place a proper disciplinary code and procedure, stipulating not only work performance procedures but also the standards of behaviour that the employer expects of his employees.


The Disciplinary Code and Procedure is a pre-requisite to fair procedure, because without it no procedure can be fair. Proper training in workplace discipline is also vital element, as well as a good understanding of the basics of Labour law applicable to discipline in the workplace. Employers are urged to take advantage of the training course being offered on 7 October at the Holiday Inn, Johannesburg International Airport and 14 October 2005, which will equip employers to properly and efficiently handle discipline in the workplace.


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Case Law Summaries and Articles


Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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