One of the most overlooked, yet critical stages of any disciplinary process is the investigation. Too often, employers rush to issue charges before properly gathering and preserving evidence. When this happens, the disciplinary process is weakened from the outset.

An investigation is not a formality. It is the foundation upon which the entire case rests. Before proceeding to a hearing, an employer must determine:

  • Whether the alleged conduct constitutes misconduct;
  • Whether there is sufficient evidence to prove the misconduct; and
  • If proven, whether dismissal or another sanction would be appropriate.

Item 8 of the Code of Good Practice provides the framework for determining whether misconduct has occurred. Employers must ask:

  • Was a workplace rule or standard contravened?
  • Was the rule valid and reasonable?
  • How important is the rule in the workplace?
  • What actual or potential harm was caused?
  • Was the employee aware, or could reasonably have been expected to be aware, of the rule?
  • Has the rule been applied consistently?

Only once these questions are answered in the affirmative, and supported by credible evidence, can misconduct properly be established. Thereafter, the final question of substantive fairness may be asked: “Whether the sanction is appropriate?”

The Code further recognises that investigations do not need to be formal, especially in small businesses that lack dedicated HR capacity. However, flexibility does not mean informality without substance. Even small employers must ensure that investigations are fair, rational, and evidence-based.

The recent decision in Mpact Operations (Pty) Ltd v Metal and Engineering Bargaining Council and Others (C181/2024) [2026] ZALCCT 2 (15 January 2026) highlights how a flawed investigation can collapse an employer’s case before it truly begins.

The employee was suspected of stealing a roll of toilet paper following a tip-off. Security searched him and found a roll in his bag. However, the employer failed to take comparative photographs of its own toilet paper stock to establish similarity. More critically, the employee was allowed to leave with the roll, meaning the alleged “exhibit” was never preserved.

The Court found that the employer had two clear opportunities to secure decisive evidence but failed to do so. By allowing the employee to leave with the alleged stolen item, the employer effectively lost the best available evidence. The investigation was so compromised that the Court concluded no contravention of a workplace rule had been proven.

The case serves as a stark reminder: a disciplinary matter can fail long before the hearing begins. If the investigation is inadequate, inconsistent, or careless in preserving evidence, the employer may struggle to justify dismissal, even where suspicion appears strong.

An investigation does not need to be complex, but it must be deliberate. Evidence must be gathered, preserved, and tested before charges are drafted. Without this groundwork, employers expose themselves to unnecessary risk in unfair dismissal disputes.

In discipline, preparation is protection.

Article by Porthri Blauw

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)