South Africa’s labour environment is strictly regulated and employers must manage labour relations in line with legislation. The basic principles employers should follow seldom change and once in place, only minor amendments are necessary in line with updates.  Here are 10 tips for employers:

1. Ensure you have an employment contract in place with every employee 

The employment contract is the most important document in the workplace and forms the basis of the relationship between the employer and employee. This is one of the key tips to protect your rights as the employer and to ensure that there is no uncertainty. Be sure not to settle for a generic employment contract but rather opt for a purpose-built one according to your business needs.

2. Use a fixed term contract carefully and ensure compliance with legislation 

A fixed term contract may not be used for a probation period. It should only be used when there is work for a temporary period. A fixed term contract may only be for a period of three months, unless there is a justifiable reason stipulated in the contract for the extension beyond three months. If an employee has a fixed term contract beyond three months without a valid reason or the employee has no contract at all, the employee may very well be regarded as a permanent employee until the contrary is proven.

3. Implement a formal retirement age

Legislation does not prescribe a retirement age in the private sector. Employers should decide what the retirement age in the workplace should be considering the type of work the employees are expected to do. Only one retirement age should be implemented for all employees to avoid unfair discrimination.

4. Pay the correct wages in terms of the employer’s specific sector

A new national minimum wage is published every year from 1 March for employers that do not resort under a Bargaining Council or a Sectoral Determination prescribing specific wages. Employers should ensure that they pay at least the current minimum wage applicable to their industry for the period of the payment concerned. If an employer is registered under a specific sector, the employer should ensure compliance with that sector’s published wages.

5. Keep a copy of the legislation specific to your industry

Whether the employer resorts under a Sectoral Determination or a Main Collective Agreement of a Bargaining Council, employers are expected to have the applicable legislation available in the workplace for employees to peruse.

6. Display the legally required legislative posters in the workplace

Employers are expected to display updated copies of the Basic Conditions of Employment Act, Employment Equity Act and Occupational Health and Safety Act.

7. Ensure you have a disciplinary code implemented

The disciplinary code should be specific to your workplace. It is important to ensure that there are clear rules in the workplace for employees to follow. Discipline should be applied progressively and consistently. All employees should be aware of the disciplinary code. Arrange a consultation with all employees where the rules are discussed and the employees are given the opportunity to ask questions. Keep an attendance register and minutes of the meeting as proof that it was brought to the attention of the employees.

8. Have a disciplinary hearing prior to dismissing an employee

A dismissal for workplace misconduct should be procedurally and substantively fair. Procedural fairness on the one hand, includes informing the employee in writing of the charges brought against him/her. The charges should be clear and unambiguous. Allow at least 48 hours’ notice (excluding weekends and public holidays) of the hearing to grant the employee sufficient time to prepare for the hearing. An employee has the right to representation by a co-employee, to present their case, to call witnesses, to question the evidence of the employer’s witnesses and to be informed of the outcome of the hearing in writing. It is important for an independent chairperson to chair the hearing. Substantive fairness on the other hand, is having valid grounds to dismiss an employee. An independent chairperson will make a recommendation based on the facts and in terms of the workplace disciplinary code and will assess if there are sufficient grounds to dismiss the employee.

9. Implement an attendance register

All employees are required to record hours worked on a daily basis.

10. Ensure you are legally compliant and registered where necessary

All employers must be registered with the Unemployment Insurance Fund (UIF) and the Compensation Commissioner for any injuries or diseases employees sustain whilst on duty.

Even though these principles are basic, it should still be done on the advice of labour professionals and also correctly to avoid arbitration awards against an employer.

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Sick leave is one of the most abused forms of leave in South African workplaces, often because it is misunderstood. Sick leave gives an employee the opportunity to be absent from work when he/she is unable to work due to illness or injury, without losing income. Employers should fully understand the requirements and responsibilities to limit unnecessary costs and proactively manage the business risk linked to labour.

The sick leave cycle

The Basic Conditions of Employment Act 75 of 1997 (BCEA) states that an employee is entitled to six weeks of paid sick leave during each sick leave cycle of 36 months. This is equivalent to 30 days for an employee with a five day workweek or 36 days for an employee with a six day workweek.

This leave cycle begins, regardless of a probation period, on the first day of employment. Please note that newly appointed employees are only entitled to one day of paid sick leave for every 26 days worked during the first six months of employment. Paid sick leave taken during the first six months of employment can then be deducted from the total number of days available in the leave cycle.

Remember that employees are only entitled to sick leave when they are truly too ill to perform their duties.

Is it paid or unpaid?

The employer must first determine whether the employee has sick leave at his/her disposal. If so, the employer must then determine whether a medical certificate is required. A medical certificate must be provided if an employee is absent for more than two work days, or is absent on more than two occasions within an eight week period, even if the absences consist of one day each time. If the employer requests the certificate and no valid certificate is provided, the employer is not obliged to pay the employee for the sick leave taken.

If the employee does not have paid sick leave available, the employer has two options:

1. to treat it as unpaid leave; or
2. to give the employee the option to treat it as paid leave and deduct it from the employee’s annual leave.

In terms of the BCEA, an employer is not obliged to pay an employee if the employee has no available sick leave days, does not provide a valid medical certificate when the employer requires it, or is absent without the employer’s permission.

Abuse of sick leave

When a valid medical certificate is provided, this absence should generally be treated as a form of incapacity as the employee is inherently unable to meet the employer’s set operational standards due to a temporary medical condition. However, when the employer suspects that sick leave is being abused, it is important to follow a fair process to investigate the allegation of misconduct.

Employers may also question suspicious medical certificates, investigate and take disciplinary action if fraud took place.

Ask the following questions as part of your investigation to determine whether an employee’s conduct amounts to misconduct and whether it may indicate the need to initiate a medical disability investigation:

• Is the employee taking a higher number of sick leave days than usual in a short period of time?
• Is the employee’s sick leave exhausted and if so, should the employer consider other labour law aspects of a medical disability investigation?
• Do the dates of sick leave taken suggest a pattern, i.e. is the employee typically sick on Mondays and Fridays, before or after a public holiday, or off sick after payday?
• Did the employee submit valid medical certificates?
• Is there any evidence that may indicate other reasons for the employee’s absences e.g. domestic problems, family responsibilities etc.?

If an employee is regularly absent, it may also indicate that the employee is truly suffering from ill health and possibly that the employer should initiate a medical disability screening process to determine whether the employee is still able to perform his or her duties and meet the employer’s set operational standards.

Sick leave is only for the employee’s own temporary medical disability and not for their family members. Many employees still mistakenly believe that sick leave can be used when a family member is ill. This is not true. The law clearly states that sick leave is only for the employee’s own illness or injury.

It is important that employers deal with workplace issues as quickly and effectively as possible, while taking care to act objectively and consistently. By being proactive, the employer can greatly contribute to the sustainability and profitability of the business and promote a work environment with limited conflict, friction and misunderstandings, which in turn creates a structured environment that is receptive to growth.

This article is written for employers who resort under the BCEA, if you have any queries regarding your industry, contact the LWO for expert advice.

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Conducting successful disciplinary hearings requires meticulous adherence to procedural fairness. Employers cannot dismiss an employee without first holding a hearing, as this ensures compliance with legislation and limits risks when dealing with disputes at bodies like the Commission for Conciliation, Mediation and Arbitration (CCMA).

Six factors that influence the outcome of a disciplinary hearing include:

1. Follow the workplace disciplinary code

A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow.  When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing.  The employer should always first establish if there is enough evidence to prove a case prior to making the decision to proceed with a disciplinary hearing.

2. Timely scheduling and completion

Schedule and conclude hearings within a reasonable timeframe after discovering misconduct. Undue delays can imply or give the impression that the employer waivers disciplinary actions and can in many instances be prejudicial to the employee. Aim to notify the employee in writing at least 48 hours in advance, excluding weekends and public holidays, detailing allegations sufficiently and allowing enough time and information for preparation. This timeline supports gathering robust evidence promptly, preventing degradation of witness recollections or document availability.

3. Thorough examination of facts and evidence

Preparation is essential. Investigate allegations to confirm they are not malicious and are supported by sufficient evidence. Suspend the employee with pay if necessary to protect the investigation. Understand evidence as facts or information proving a proposition’s validity. Types include verbal testimonies from witnesses with firsthand knowledge, documentary items like attendance registers, concrete objects such as stolen goods, and visual records like video footage or photographs.

Adhere strictly to evidence rules. For example, with documents, submit the original documents where possible and if authenticity is disputed, explain absences of originals and have witnesses authenticate the documents. Sworn statements require the maker’s presence for cross-examination. The reason for this is that parties have a right to cross examine witnesses based on the content of their statements. Avoid hearsay, which is second-hand information and inadmissible unless corroborated by direct witnesses. Present only admissible, trustworthy evidence, as the chairperson decides solely on what is tabled. A strong disciplinary code outlining rules and sanctions aids in establishing misconduct thresholds.

4. Assessing the seriousness of the offence

Evaluate misconduct’s gravity based on the employee’s role, potential consequences and impact on the employee/employer trust relationship. Where the offence is very serious and the possibility of dismissal exists (e.g. theft), the employer must investigate and then conduct a disciplinary hearing to ensure that the procedure followed is fair and that there is substantive evidence that may lead to the employee’s dismissal. Consider aggravating and mitigating factors, ensuring evidence substantiates the offence’s severity for a fair outcome.

The use of supporting concrete or visual evidence to investigate, as well as at the hearing, often is of great help as it carries more persuasiveness than verbal evidence alone.

• Concrete evidence: the actual recovered company property that the employee was caught stealing.
• Visual evidence: picture footage, such as video footage from a security camera showing the theft at work.

5. Ensuring impartial assessment

Appoint an impartial chairperson, ideally an external expert, to avoid bias perceptions, such as in cases where the employer acts as complainant as well. The chairperson must base decisions on facts and evidence presented at the hearing, weighing up both sides. This impartiality upholds procedural fairness, reducing unfair dismissal claims.

6. Adhering to fair procedure

Follow statutory procedures rigorously, as many CCMA referrals stem from procedural flaws. Prove the hearing occurred, notification was proper, the employee had defence opportunities to provide his/her version of events in response to the charges, that circumstances were considered, the sanction not only fit the offence but have been applied consistently in the workplace and that the outcomes were documented and given to the employee in writing.

By focusing on these factors in 2026, employers can mitigate risks, foster workplace discipline and comply with evolving labour regulations. Consult the LWO for tailored advice to navigate the complexities of labour legislation.

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New code, old lessons – don’t believe the hype:  dismissals still aren’t simple. Ever since the new Code of Good Practice: Dismissal (CGPD) was published in draft form for public comment in January 2025, public discussion has largely centred on how it would finally make dismissals simpler, quicker, and less cumbersome, especially for smaller employers dealing with the proverbial “rotten apples” guilty of misconduct.

Business owners therefore understandably expected that, with the new CGPD taking effect on 4 September 2025, dismissing an employee for serious misconduct would now be a mere formality. However, that perception is a dangerous oversimplification of what the new code actually changes.

Simpler processes – but still bound by fairness

Item 3(3) of the CGPD provides that:

“For example, small businesses cannot reasonably be expected to engage in time-consuming investigations or pre-dismissal processes while at the same time keeping the business going. It should also be borne in mind that small employers do not have human resource departments offered by people with skills and experience in these matters.”

While this appears to offer flexibility to smaller employers, the fundamental requirements of fairness remain unchanged. Dismissals must still be based on a fair reason, follow the employer’s internal policies and comply with a fair procedure, albeit that the employer may now implement a more practical and less formal disciplinary policy.

In outlining what a fair procedure entails, the CGPD includes several provisions. Notably, Item 11(3) states:

“An investigation or inquiry does not have to be formal. Its nature should be appropriate to the circumstances, including the type of allegation and the nature and size of the employer.”

Unfortunately, the CGPD offers no clear guidance on what level of process is appropriate for different sizes of employers. It therefore remains to be seen whether focusing on a thorough investigation, rather than a lengthy, courtroom-style disciplinary hearing will be considered sufficient.

The CCMA’s role remains the same

Importantly, the role of the Commission for Conciliation, Mediation and Arbitration (CCMA) in considering the fairness of a dismissal has not changed. The fact that a dismissed former employee may refer an unfair dismissal dispute with the expectation of a complete rehearing of the matter before an arbitrator, has thus not changed either. This basically means that the employer’s role when conducting the investigation also remains largely the same.

Therefore, in practice, an employer’s responsibility to gather and preserve evidence early on has not changed. In fact, it has become even more critical. Employers who opt for a simplified internal process must ensure that the evidence supporting the dismissal is solid, well-documented, and preserved for potential CCMA scrutiny.

By the time the employer’s first witness (often the business owner) is cross-examined at arbitration, it is far too late to start looking for missing, or poorly recorded, evidence. Few employers have the internal capacity to conduct proper investigations into serious misconduct or criminal activity, and where such capacity exists, it is rarely independent or adequately equipped to handle complex or sensitive cases.

Specialist investigations

This is why making use of a specialist investigator is an important tool for employers to prepare for a hearing in a professional and fair manner, especially when dealing with complex or sensitive matters.

LWO members are reminded that a specialist ad hoc pre-hearing investigation service is available to members through our partnership with Labour Quest. This service is led by Adv Ben Lategan, an experienced legal practitioner and specialist investigator.

Don’t wait until you are sitting at the employee’s disciplinary hearing or, even worse, the CCMA, before starting a proper investigation and preparation process. Simpler processes might not always be better, and simpler procedures do not necessarily mean guaranteed outcomes.

Contact the LWO if you would like to make use of this service or request further details. Alternatively, you can contact Labour Quest directly for more information on 076 091 4647 or via e-mail: info@labourquest.co.za.

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A probation period is the period at the beginning of an employment relationship. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance and suitability for employment before confirming appointment.

Length of the probation period

The length of the probation period is not prescribed by legislation. The duration of the probation period should be determined by the employer and must be reasonable, considering the nature of the job and the period in which the employer requires to determine whether the employee can do the job that is expected.

A probation clause

It is essential to add a probation clause to all employment contracts, whether permanent or fixed term. This is a very important period where the parties can get to know each other and where the employer can determine the employee’s capabilities. The employee will be aware of how long the evaluation period will be and should also be made aware that during this period, the employer must advise the employee of any assistance that is required to perform satisfactorily.

Assessment

The employer is required to do continuous assessment where reasonable evaluation, instruction, training, guidance or counselling is given to allow the employee a fair opportunity to render satisfactory service. If the employee is falling short of the standard, the employer should advise the employee where the employee’s work is below standard and grant the employee a reasonable period to bring their work up to standard.

Extending the probation period

An employer may consider extending the probation period or may follow proper procedures to dismiss an employee. A probation period may be extended to further give the employer the opportunity to evaluate the employee’s performance. The extension period should be reasonable and fair. Prior to any of these options being exercised by the employer, the employee must first be given the opportunity to make representations which must be considered by the employer.

Be careful

Probation should not be used to deprive employees of the status of permanent employment. For example, a practice of dismissing employees at the end of their probation periods for reasons unrelated to their performance or suitability for employment and replacing them with newly hired employees is inconsistent with the purpose of a probation period and may constitute an unfair dismissal.

Similarly, if there is a permanent position available, an employer should not appoint an employee on a fixed term contract and conceal the real reason for the fixed term contract. Therefore, an employer cannot use a fixed term contract for each person that is hired until they find the person that is best suited for the job. This may be regarded as an unfair dismissal. If there is no valid reason for a fixed term contract, it may be regarded as a permanent contract until the contrary is proven.

Dismissal

If an employee was dismissed during or after a probation period and the procedures were not followed correctly, or the reason for the dismissal is unfair, an employee may refer either an unfair labour practice or unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). An applicant at the CCMA has 90 days to refer an unfair labour practice dispute and 30 days to refer an unfair dismissal dispute.

Employers must ensure that employees are appointed in line with legislation, using the right employment contracts and following correct procedures during the probation period. Failure to comply with the law will become a very costly exercise when a matter is referred to the CCMA.

Contact the LWO for any advice or assistance!

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The employer’s primary objective is to enhance productivity while fostering a healthy working environment. From time to time, however, employers may feel that certain terms and conditions of employment should be amended to meet evolving workplace requirements. This raises an important question: may an employer implement such changes without consulting affected employees?

The short answer

No. An employer may not unilaterally change the terms and conditions of employment. Any change requires the employee’s consent.

The correct process

When contemplating changes, an employer should:

• Inform employees of the proposed amendments
• Allow them reasonable opportunity and time to prepare
• Consult meaningfully with those affected to obtain their views
• Aim to reach consensus and confirm any agreement in writing

Consultation is not a mere formality and it is always best to obtain legal advice before initiating a consultation process. Labour legislation often requires specific procedures, timelines and discussion points, particularly when the proposed changes relate to cost-saving measures, such as salary reductions or possible retrenchments.

Risks of non-compliance

If an employer proceeds unilaterally, employees may refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA provides employees with a platform to challenge unlawful or unfair changes, protecting their rights and ensuring workplace fairness.

Common risk areas for employers

The most frequent unilateral changes (and sources of disputes) include:

• Working hours – e.g. reducing working hours and salary, or introducing short time
• Remuneration – e.g. reducing salary or benefits (cell phone, medical aid, fuel allowance, pension fund, etc.), or amending the conditions on which bonuses are payable (thirteenth cheque, performance based)
• Duties – e.g. increasing or reducing an employee’s responsibilities

Any such changes, however minor they may seem, cannot be implemented without consultation and consent as required by law.

Written vs. implied terms

Even where an employee has no written employment contract, the position remains the same. Employment terms may be:

• Express (contained in contracts), or
• Implied (arising from collective agreements, established workplace customs or practice, or legislation)

Implied terms can be proven through agreements, past practices, or testimony from employees and managers.

Final word

The law strictly prohibits unilateral alterations to employment terms. Employers are strongly advised to:

• Always consult with employees
• Obtain written agreement
• Seek expert legal guidance before implementing any change

This approach reduces legal risks, ensures compliance, and helps maintain a fair and productive workplace.

Contact the LWO for any advice or assistance!

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