Misconduct in the workplace is one of the most common reasons for employee discipline and dismissal. However, in South Africa’s highly regulated labour environment, disciplinary action—particularly dismissal—must be based on clear, legally admissible evidence. Failure to follow due process or relying on inadmissible evidence can result in the Commission for Conciliation, Mediation, and Arbitration (CCMA) or Labour Court ruling against the employer, often reinstating the employee or awarding compensation.

This article unpacks every legal aspect of evidentiary requirements in cases of employee misconduct, including the types of admissible evidence, the role of procedural fairness, evidentiary standards in CCMA hearings, and how employers can build strong, legally sound cases—especially when dealing with serious issues such as gross insubordination, gross dishonesty, and dismissal for misconduct.

What Constitutes Misconduct in the Workplace?

Before examining admissible evidence, it's essential to define misconduct in the workplace. Misconduct refers to behaviour that violates company policies, employment contracts, or general standards of conduct expected in a professional setting.

Common examples include:

• Insubordination in the workplace (e.g., refusal to follow a lawful instruction).
• Gross insubordination (e.g., repeated defiance of authority).
• Theft or fraud.
• Gross dishonesty, such as falsifying documents.
• Sexual harassment or discrimination.
• Absenteeism or time theft.
• Verbal or physical abuse.

When an employer believes an employee has committed such misconduct, the next step is gathering legally admissible evidence to justify any disciplinary action.

Legal Requirements for Dismissal for Misconduct

According to Schedule 8 of the Labour Relations Act (LRA)—also known as the Code of Good Practice on Dismissal—a dismissal for misconduct must be:

Substantively fair: There must be a valid and fair reason related to the employee’s conduct.
Procedurally fair: The correct disciplinary procedures must be followed before dismissal is considered.

This means that even if an employee is guilty of serious misconduct, the employer cannot rely on inadmissible or unlawfully obtained evidence.

The Legal Threshold - What Makes Evidence Admissible?

To be legally admissible, evidence must meet certain legal standards:

Relevance

Evidence must relate directly to the misconduct. For example, if an employee is accused of theft, proof of unauthorised transactions or CCTV footage of the incident is relevant.

Reliability

Evidence must be accurate, authentic, and trustworthy. It should not be based on speculation or hearsay unless corroborated.

Lawfully Obtained

Evidence must not be obtained in a manner that infringes on the employee’s constitutional rights, such as illegal surveillance or accessing private communications without consent.

Procedural Fairness

The accused employee must be given the opportunity to challenge the evidence during a disciplinary hearing.

Types of Admissible Evidence in Misconduct Cases

Documentary Evidence

• Emails, timesheets, reports, performance warnings, signed acknowledgements of company policies, employment contracts, and audit logs.
• For cases involving gross dishonesty, falsified documents or altered figures may serve as direct evidence.

CCTV or Surveillance Footage

• Legally obtained video footage showing acts of theft, violence, or unauthorized access.
• Must be used in accordance with POPIA (Protection of Personal Information Act)—employees must be aware that they are under surveillance.

Digital Evidence

• Logs of system access, email records, metadata, and screen recordings—especially relevant in IT, financial fraud, or data breach investigations.

Witness Testimony

• First-hand accounts from co-workers or supervisors are admissible but must be credible and consistent.
• Anonymous testimony may be allowed in exceptional circumstances, such as threats of intimidation, but should be corroborated.

Expert Evidence

• Forensic audits or handwriting analysis in cases of forgery or fraud.
• External experts can be called to validate digital or financial evidence.

Admissions or Confessions

• Voluntary confessions are admissible. Forced or coerced admissions, however, are not.
• Caution should be exercised during internal interviews—employees must not be misled or pressured.

Polygraph Results

• Polygraph tests can support other evidence but cannot be the sole basis for dismissal.
• Consent is required, and polygraphs should only be administered by qualified professionals.

Hearsay Evidence - Is It Admissible?

Hearsay is defined under the Law of Evidence Amendment Act 45 of 1988 as second-hand testimony. In most legal forums, hearsay is inadmissible unless:

• The party against whom it is offered agrees to its admission.
• The source of the hearsay is unavailable (due to death or incapacity).
• The interests of justice require its admission.

The CCMA has more flexible evidentiary rules than a court, but employers should avoid relying solely on hearsay in cases of dismissal.

Procedural Fairness in Handling Misconduct

Employers must conduct an internal disciplinary hearing before proceeding with dismissal. Even if there is strong evidence, failure to follow fair procedures may render the dismissal unfair.

The Correct Process Includes:

1. Issuing a Charge Sheet: The employee must be informed in writing of the allegations, including specific details (dates, nature of misconduct, and policies breached).
2. Providing Time to Prepare: Employees must be given adequate notice before the hearing.
3. Allowing Representation: The employee has the right to be represented by a co-worker or union representative.
4. Holding a Fair Hearing: An impartial chairperson must preside. Both sides should present evidence and question witnesses.
5. Delivering an Outcome in Writing: Any disciplinary action must be documented, and reasons must be given.

If the process is flawed, a CCMA dismissal for misconduct may be overturned—even if the misconduct occurred.

Standard of Proof at the CCMA

In criminal courts, guilt must be proven “beyond reasonable doubt.” However, in workplace matters, the CCMA applies a “balance of probabilities” test. This means:

• Is it more probable than not that the employee committed the misconduct?
• Did the employer act fairly under the circumstances?

Employers must still present clear, consistent, and credible evidence to meet this standard.

Insubordination and Gross Dishonesty

Some forms of misconduct require closer scrutiny:

Insubordination in the Workplace

This occurs when an employee refuses to follow a lawful and reasonable instruction from someone in authority.

Example of Insubordination:

An employee refuses to carry out a direct task assigned by their supervisor without justification.
To be admissible, the employer must prove:

• The instruction was lawful and reasonable.
• The employee understood it.
• The refusal was deliberate.

Gross Insubordination

Goes beyond mere defiance—includes publicly challenging authority, repeated defiance, or disrespecting the chain of command.

Dismissal for gross insubordination may be upheld even for first offences if the relationship of trust is broken.

Gross Dishonesty

Dishonesty that damages trust to the point that the employment relationship is no longer viable. Examples:

• Falsifying qualifications.
• Misappropriation of company funds.
• Manipulating business records.

Evidence must directly link the misconduct to the employee and prove intent to deceive.

Real-World Outcomes - What the CCMA Considers

CCMA Dismissal for Misconduct: When Employers Fail

The CCMA may find a dismissal unfair if:

• The evidence is purely circumstantial or speculative.
• The employer relied on hearsay without corroboration.
• The disciplinary process was procedurally flawed.

When Employers Succeed

Dismissals are more likely to be upheld when:

• Clear, direct evidence is provided.
• Proper disciplinary procedures were followed.
• The nature of the misconduct undermined trust.

Forensic Investigations

Complex misconduct cases—particularly those involving fraud, data theft, or gross dishonesty—may require expert assistance. This is where forensic investigations come into play.

At Bailey Haynes Inc., our legal team assists employers with:

• Investigating serious workplace misconduct.
• Collecting and preserving digital and documentary evidence.
• Preparing admissible evidence for CCMA or Labour Court proceedings.
• Advising on dismissals involving criminal behaviour.

Whether you suspect gross dishonesty, employee theft, or misuse of confidential data, our specialists ensure your actions remain legally defensible.

Working with Attorneys in Cape Town

Given the legal complexity of workplace misconduct cases, partnering with our experienced attorneys in Cape Town ensures:

• Your disciplinary processes comply with the Labour Relations Act.
• You obtain and preserve evidence lawfully.
• You are fully prepared for CCMA hearings or litigation.
• You avoid costly reinstatement orders due to procedural missteps.

Bailey Haynes Inc.— Labour Law Attorneys Cape Town

In South Africa, dismissing an employee for misconduct is not just about what they did—it's about how you prove it. Employers must build strong, evidence-based cases, follow procedural fairness, and ensure the evidence is relevant, reliable, and lawfully obtained.

Whether you're dealing with insubordination in the workplace, gross dishonesty, or other forms of serious misconduct, legal admissibility is the key to enforcing discipline that stands up to scrutiny.

For expert guidance on handling workplace misconduct, disciplinary hearings, and forensic investigations, contact Bailey Haynes Inc.—trusted attorneys in Cape Town—to ensure your process is both fair and legally sound.