The employee may have done it. Can the employer prove a fair dismissal?

Employers sometimes arrive at arbitration with a strong belief that the employee deserved dismissal but a weak evidentiary record explaining why. That gap is where otherwise defensible cases become vulnerable.

1. The employer cannot clearly identify the rule

For misconduct, the current Code directs attention to whether a workplace rule or standard was contravened, whether it was valid and reasonable, whether the employee knew or could reasonably have known it and how important the rule was in the workplace.

If the employer’s case begins and ends with “everyone knows that,” the commissioner may need much more. Policies, contracts, induction records, instructions, established practices and witness evidence can all become relevant.

2. The charge does not match the evidence

A manager may be angry about disrespect while the real issue is refusal to obey an instruction. Or an employee may be charged with dishonesty when the evidence only establishes an error. If the allegation and evidence do not align, the employer makes the hearing harder than it needs to be.

3. The investigation was too shallow

Disciplinary action should not be used to discover the case for the first time. Before charging, the employer should know what happened, what evidence supports the allegation, what evidence may contradict it and which witnesses can prove the material facts.

4. The employee was not given a fair opportunity to respond

The Code describes fair procedure as genuine dialogue and a reasonable opportunity to respond to the misconduct allegation. The employee should ordinarily receive sufficient detail to understand the allegation, reasonable time to prepare, an opportunity to make representations and permitted workplace assistance.

5. The employer confuses the finding with the sanction

Proving misconduct does not automatically prove dismissal was fair. The sanction analysis should consider seriousness, harm, the importance of the rule, progressive discipline, consistency, the employee’s circumstances and whether the employment relationship has become intolerable.

6. Inconsistency is discovered too late

If other employees committed comparable misconduct and received materially different treatment, the employer should be ready to explain the distinction. The Code identifies consistency as an important factor in assessing fairness, while recognising that inconsistency does not mechanically decide every case.

7. The disciplinary record is incomplete

The Code specifically states that employers should keep records for each employee specifying the nature of disciplinary transgressions, the action taken and the reasons for the action. A clear record assists both consistent management and later dispute preparation.

8. The wrong witness attends arbitration

A bundle cannot answer every factual dispute. The employer should identify who actually gave the instruction, saw the conduct, handled the investigation or made the relevant decision. A witness who only received the file later may have limited value on contested facts.

9. The employer starts preparing after the referral arrives

By then, witnesses may have left, messages may be gone, memories may have faded and managers may struggle to explain why a sanction was imposed. A CCMA-ready internal process stores the evidence and reasoning from the beginning.

The employer’s pre-dismissal checklist

CCMA readiness starts before dismissal

The goal is not to run every workplace hearing like a court case. It is to make decisions that are clear, evidence-based and fair enough that another decision-maker can later understand exactly what happened and why the employer acted as it did.