Services · Discipline & Dismissals

Can I dismiss this employee?

Before you act on a poor performer, a disciplinary case, a resignation or a restructure, know what the law actually allows, and what happens if you get it wrong.

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The legal position

What a fair dismissal requires

A dismissal is judged on two things, separately: whether there was a fair reason, and whether a fair process was followed to reach it. Getting either one wrong is enough to lose.

A fair reason and a fair process

A dismissal must be for a fair reason relating to the employee's conduct, the employee's capacity, or the employer's operational requirements, and it must follow a fair procedure. Once the dismissal is established, it is the employer who must prove it was fair.

LRA s188 and s192

The 2025 Code of Good Practice: Dismissal

Since 4 September 2025 a new Code has replaced Schedule 8 to the LRA. It keeps the core requirement that the employee is told what is alleged and given a fair chance to respond, and it expressly allows small businesses a less formal process, provided that chance to respond is still given and the decision is recorded.

Code of Good Practice: Dismissal (2025)

Misconduct, poor performance and incapacity are different processes

Misconduct is about breaking a rule. Poor performance calls for a clear standard, support, training and a reasonable time to improve. Ill health or injury calls for investigation and accommodation before dismissal is considered. Running the wrong process is one of the most common reasons employers lose.

LRA s188; Code of Good Practice: Dismissal (2025)

Some reasons are never fair

A dismissal because of pregnancy, trade union membership or activity, a protected disclosure, or discrimination on a listed ground is automatically unfair, whatever process was followed, and carries the higher compensation cap.

LRA s187

Common mistakes

Where a disciplinary case is usually lost

Almost all of these come down to a decision made without checking first. That is the part we fix.

What you get with ClearLine

The tools and the people behind them

Everything below sits in your member portal, against your own company and employee records, so the history is there when you need it.

Guided disciplinary, performance and incapacity workflows

Step-by-step processes in the portal for misconduct, poor performance, incapacity and grievances, from the first incident to the outcome, with the documents each step needs.

In the member portal

Warnings that do not quietly lapse

Log verbal, written and final written warnings against the employee's file with a set validity period (our recommended defaults are 3, 6 and 12 months) and a running countdown, so you always know which warnings are still live.

Every package

A compliance check before anything goes out

Warnings and disciplinary documents are checked against the LRA and BCEA as you prepare them. If something looks like a contravention, the document is held and a legal advisor contacts you before it is issued.

Every package

Hearing notices, reports and final written warnings

Notice of Disciplinary Hearing, Disciplinary Report and Final Written Warning, prepared from the details you have already captured on the employee's file.

From Assist; unlimited on Executive and Premier, within the document allowance

Discipline Handbook for Employers

What to do when an employee breaks the rules, from the first complaint to warnings, hearings and the outcome, step by step.

Included on Executive and Premier; a once-off purchase on other packages, at your member discount

A legal advisor when it matters

When a question is outside Naledi's scope, or you want a person to look at your specific facts, escalate it to a labour consultant through the portal and get a considered answer, not a guess.

From Professional, with more escalations per month on each higher package

Disciplinary documents in the member library

Disciplinary ReportFinal Written WarningNotice of Disciplinary HearingVerbal WarningWritten Warning

How it works

Three layers of support, in order

1

Naledi answers first

Routine, settled questions get an immediate answer from Naledi, our online legal advisor.

2

A legal advisor steps in

Anything outside Naledi's scope goes to a senior legal advisor, who responds personally.

3

The attorney panel, if needed

Matters that need an attorney go to our panel, under a separate mandate you enter directly with that firm.

FAQ

Questions employers ask us

Do I always need a formal disciplinary hearing?

Not always a formal one, but the employee must always be told what is alleged and given a fair opportunity to respond before a decision is made. The 2025 Code allows small businesses a less formal process, as long as that opportunity is given and the decision is recorded.

How long does a warning stay valid?

The law does not fix a single period. It depends on the seriousness of the offence and your own disciplinary code. In the portal, we recommend 3 months for a verbal warning, 6 for a written warning and 12 for a final written warning, and you choose the period when you issue it.

An employee resigned before the hearing. What now?

A resignation generally ends the employment once the notice period runs out, which affects whether a hearing can still proceed. Ask Naledi or escalate it to a legal advisor before you act, as the right answer depends on the timing and the notice given.

Ask about your specific situation

Get a straight answer from Naledi, free, or join and have a legal advisor and the attorney panel behind every decision.

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