Can I be fired without a disciplinary hearing?

In most cases, no. Under the Labour Relations Act 66 of 1995 (LRA) a dismissal must be fair in two separate ways. There must be a fair reason, and there must be a fair procedure. For misconduct, a fair procedure normally means you are told what you are accused of and given a real chance to answer before the employer decides.

If your employer skipped that step, the dismissal is likely procedurally unfair even if you did the thing you were accused of. What you get for that is usually compensation rather than your job back, but it is still a claim worth pursuing.

What a fair process looks like

The Code of Good Practice on dismissal that accompanies the LRA sets out what is expected. It is deliberately not a court process. In plain terms, before dismissing you for misconduct your employer should:

1. Investigate to establish whether there are grounds for dismissal. It does not have to be a formal enquiry.
2. Tell you the allegations in a form and language you understand. This is usually a written notice or charge sheet.
3. Give you reasonable time to prepare a response. A few days is common. Being handed a charge sheet and marched into a hearing ten minutes later is not reasonable.
4. Allow you to state your case, to respond to the allegations, and to be assisted by a fellow employee or a trade union representative.
5. Give you the decision, preferably in writing, with reasons.
6. Tell you about your right to refer a dispute to the CCMA or a bargaining council, or to use an internal appeal if one exists.

You do not have an automatic right to a lawyer at an internal hearing. Your right is normally to a fellow employee or a union representative, unless your employer's own disciplinary code says more.

When a hearing can be shortened or skipped

There are limited situations where a full hearing is not required.

• You waive it. If you are given proper notice and simply refuse to attend, the employer may proceed in your absence.
• Exceptional circumstances. The Code recognises that in exceptional cases an employer may dispense with a pre dismissal procedure, for example a crisis where it is genuinely not reasonable to expect one. This is a narrow exception and employers overuse it.
• You are not an employee. A genuine independent contractor is not protected by the LRA's unfair dismissal provisions. Be careful here, because being called a contractor in a contract does not make you one. The law looks at the reality of the relationship.
• Probation. A hearing for poor performance during probation is less formal than a misconduct hearing, but you must still be evaluated, given guidance, and given a chance to respond before dismissal.
• Retrenchment. A retrenchment is not misconduct, so there is no disciplinary hearing. There must be a consultation process instead. See Can my employer retrench me without paying severance?.
• A fixed term contract that simply ends on its date. That is not usually a dismissal, unless you had a reasonable expectation of renewal.

Note what is not on this list. "Serious misconduct" is not an exception. Theft, dishonesty and violence are the reasons employers most often dismiss on the spot, and they are exactly the cases where a hearing matters most.

The difference between an unfair reason and an unfair process

This distinction decides what you can realistically expect.

• If the reason was unfair, for example you did not do it, or dismissal was too harsh for what you did, a commissioner may order reinstatement with back pay, or compensation.
• If only the process was unfair, and the reason for dismissal was valid, reinstatement is unlikely. The usual remedy is compensation, which a commissioner sets at what is just and equitable, capped at 12 months' remuneration for an ordinary unfair dismissal.

For an automatically unfair dismissal, such as dismissal for pregnancy, for union membership or for taking part in a protected strike, the cap is 24 months' remuneration.

Common problems with hearings

Even where a hearing happens, it may not have been fair. Watch for:

• A chairperson who is not impartial, for example the person who laid the complaint or who witnessed the incident.
• No disclosure. You were not shown the statements, CCTV footage or documents relied on against you.
• Charges that change during the hearing, or a dismissal for something you were never charged with.
• No right to representation, where you were told you had to attend alone.
• A predetermined outcome, for example a dismissal letter dated before the hearing.
• Inconsistency, where a colleague did the same thing and got a warning.

Write these down while they are fresh. The detail is what wins arbitrations.

What to do if you were dismissed without a hearing

1. Ask for written reasons for the dismissal and a copy of your disciplinary record and the employer's disciplinary code.
2. Use the internal appeal if your employer has one and the time limit has not passed. Doing so does not stop the CCMA clock, so refer the dispute as well if the deadline is close.
3. Refer the dispute within 30 days of the dismissal to the CCMA on 0861 16 16 16, or to your bargaining council if one covers your sector. It is free. Our guide on how to refer an unfair dismissal to the CCMA walks through the form.
4. Collect your documents: contract, payslips, charge sheet, hearing notes, warnings, the dismissal letter, and any messages about the incident.
5. Write a timeline with dates and names. Do it now, not the week before arbitration.

If you are outside 30 days you can still refer, but you must apply for condonation and explain the delay.

What happens at arbitration

Conciliation comes first, where a commissioner tries to help both sides settle. If that fails, most misconduct dismissals go to arbitration, where evidence is led and witnesses are cross examined. The employer generally carries the burden of showing the dismissal was fair, which is why the absence of a hearing hurts them. Legal representation at a misconduct arbitration is not automatic and the commissioner decides whether to allow it.

Free help is available from your union, from the CCMA itself, and from Legal Aid South Africa on 0800 110 110.