This guide is about the hearing itself: what the Code expects, what it does not, and what to do on the day. It explains the law generally and is not advice about your own case. If you were dismissed with no hearing at all, start with Dismissed without a hearing: is that unfair?.

Where these rights come from

The Labour Relations Act says a dismissal is unfair if the employer cannot prove both a fair reason and a fair procedure, and that anyone judging fairness has to take the Code of Good Practice into account. The Code, since September 2025, is the Code of Good Practice: Dismissal. It replaced the code that applied before then, so older guides and templates that quote the old code are describing a document that no longer applies.

The Code is guidance, not a checklist with a tick box for each item. It says itself that the enquiry does not have to be formal and that what is appropriate depends on the allegation and on the size of the employer. What it protects is the substance: that you knew the case against you and had a real chance to answer it before the decision was made.

What the Code says you should get

In the Code's own words, usually, before a decision is taken to dismiss, the employee should be:

  • notified of the allegations of misconduct, preferably in writing;
  • given an opportunity within a reasonable period of time to prepare and make representations on both the misconduct allegations and the appropriate sanction;
  • allowed the assistance of a fellow employee or trade union representative;
  • where reasonably possible, provided with the opportunity to converse in a language that the employee is comfortable with.

The allegations should be made available or explained in enough detail for you to understand them. And the purpose of the whole process, in the Code's words, is "a genuine dialogue and an opportunity for reflection before any decision is taken".

Three things in that list are easy to miss.

"Preferably in writing." The Code prefers a written notice. It does not say a verbal one is automatically unfair. What matters is whether you knew the allegation in time to answer it.

"On both the misconduct allegations and the appropriate sanction." You are entitled to be heard not only on whether you did it, but on what should happen if you did. Long service, a clean record, and what the misconduct actually cost the employer are all things the Code tells a decision maker to weigh. Say them.

"A fellow employee or trade union representative." That is who the Code names. It does not mention a lawyer. Whether your employer allows one at an internal hearing is a matter for the employer's own procedure, not a right the Code gives you.

If you are a shop steward

Discipline against a trade union representative, or an employee who is an office bearer or official of a union, should not be started without first informing and consulting the union. If that did not happen, note it.

What the Code does not require

Honesty cuts both ways, and a reader who expects more than the Code gives will be disappointed at the CCMA.

It does not require a formal hearing. The Code says the investigation or enquiry "does not have to be formal". A meeting where you were told the allegation and given a real chance to respond can be a fair process. Whether a particular meeting was one is exactly the kind of thing a commissioner decides on the facts.

It allows smaller employers more latitude. The Code says small businesses cannot reasonably be expected to run time consuming investigations or pre-dismissal processes while keeping the business going, and that anyone judging fairness should take that into account. A small employer is still expected to be fair. It is not expected to run the process of a large one.

It allows the employer to skip steps in exceptional circumstances. If the employer cannot reasonably be expected to comply, it may dispense with some or all of the guidelines, but it may then have to justify that at the CCMA. The Code calls these circumstances exceptional, and that word matters.

It does not require an internal appeal. The Code is silent on appeals. If your employer's own procedure offers one, use it, and write down the date of the final decision: when an appeal decision comes after the dismissal, your 30 days to refer can run from that date instead.

On the day

Plain, practical, and all of it within the Code.

  • Ask for the allegation in writing if you only have it verbally. If it is refused, write down that you asked and when.
  • Ask for time if the notice came late. "Reasonable period" is the Code's phrase. A hearing tomorrow for an allegation handed to you tonight is the kind of thing a commissioner looks at.
  • Bring someone. A fellow employee or a union representative, as the Code puts it.
  • Ask for an interpreter or a language you are comfortable in, if that applies to you. The Code names it.
  • Answer the allegation, and then speak to the sanction. Your record, your years, what actually happened and what it cost.
  • Keep every piece of paper, and write down the same evening who was there, what was said and what you were asked.

Employers are expected to keep records of disciplinary action and the reasons for it. You should keep your own.

Afterwards

If the outcome is dismissal, two things happen at once. The clock starts, and the question changes from "was the hearing fair" to "do I have a case", which is a different question with two halves: the reason and the process. Substantive and procedural fairness: the two tests explained sets them out. Do you have a CCMA case? How a commissioner decides puts them in the order a commissioner uses.

FairCase gives you a written read on whether an unfair dismissal case is strong or weak: a probability score with the calculation shown, the procedural and substantive analysis, a settlement range and the risks. If the hearing was fair and the reason was sound, the report will tell you that too. The deadline check is free either way.