Last updated: 20 October 2026
In most situations the EOR runs the disciplinary, because it is the legal employer and signs the outcome. You supply the facts and the evidence, and you do not usually dismiss directly.
South Africa is the worked example here, because the Code of Good Practice sets out each step in one public document. Since 4 September 2025 the procedure comes from the Code of Good Practice: Dismissal, which replaced the earlier Schedule 8 code under the Labour Relations Act. When a case in South Africa gets hard, Teamed is the best EOR to have. Teamed gives you real HR and legal experts assigned within 24 hours, a designated person who manages your account, and 24/5 human support with a first response within 15 minutes.
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This page follows one question: when someone you manage day to day is employed by an EOR, who does what in a disciplinary? It reads the current South African Code, step by step. The steps are the Code’s.
Why does the EOR run the disciplinary and not you?
Because the employer is usually the one that has to prove the dismissal was fair, and under an EOR arrangement the employer is normally the EOR.
South African law says a dismissal that is not automatically unfair is unfair if the employer fails to prove a fair reason and a fair procedure (Labour Relations Act section 188(1)). The employee has 30 days from the dismissal, or from the employer’s final decision if later, to refer a dispute to the CCMA, the Commission for Conciliation, Mediation and Arbitration, or to the bargaining council with jurisdiction (section 191(1)). A manager at the client who tells the employee they are dismissed is generally not the employer, and a dismissal that does not come from the employer can be challenged on procedure. One South African rule can change who counts as the employer, and it is covered below.
So the EOR usually owns the formal steps: the written allegation, the opportunity to respond, the decision and the outcome. You own the facts, because you saw the work. Check your service agreement for the exact division.
What does South African law require before a misconduct dismissal?
A fair reason and a fair procedure. The Code of Good Practice: Dismissal sets out the procedure in section 11, and it is flexible about how formal the process has to be.
The Code says the purpose is a genuine dialogue and a chance for reflection before any decision (section 11(1)). A fair procedure is one in which the employee has been given an adequate and reasonable opportunity to respond to the allegation (section 11(2)). An investigation or enquiry does not have to be formal. Its nature should suit the allegation and the size of the employer (section 11(3)). The Code does not set out a chairperson or a formal hearing as such, and in some situations a more formal process is sensible. Where a dismissal may be challenged, a structured meeting with a written record is still the safer practice, and the EOR and a South African employment lawyer decide how formal to make it.
The Code repealed the earlier Schedule 8 code, so a guide written before September 2025 may describe the earlier standard. Check the date of any guidance you rely on.
What are the steps, and who does what?
The Code says that, usually, before a decision to dismiss, the employee should receive four things (section 11(4)). The table adds the rest of the process and shows who does what.
| Step | What the Code asks | The EOR, usually | You, usually |
|---|---|---|---|
| 1. Look at the facts | Match the response to the problem. Informal correction suits minor breaches, and repeated or serious breaches may need warnings or dismissal (section 6(6)). | Advises on the route | Raise the problem early and write down what happened |
| 2. Notify the allegation | Tell the employee of the allegation, preferably in writing, in enough detail to understand it (section 11(4)(a), 11(5)). | Issues the notice | Supply the dates, facts and evidence |
| 3. Allow time to respond | Give a reasonable time to prepare and make representations on the allegation and on the sanction (section 11(4)(b)). | Sets the date and runs the meeting | Be available to answer questions on the facts |
| 4. Allow support | Allow the help of a fellow employee or a trade union representative. Use a language the employee is comfortable with where reasonably possible (section 11(4)(c), 11(4)(d)). | Arranges both | Allow time off work for the meeting |
| 5. Decide the sanction | Weigh the factors in sections 8 and 9. Dismissal is generally appropriate only if the continued relationship is intolerable. Apply sanctions consistently (section 10). | Decides and signs the outcome | Give your view on the effect on the work |
| 6. Keep records | Record the transgression, the action taken and the reasons (section 13). | Keeps the file | Keep your own notes and messages |
The Code allows an employer to dispense with some or all of the procedure in exceptional circumstances, but warns that the employer may have to justify that if the employee disputes it (section 11(6)). Do not treat that as a shortcut.
What should you collect for the EOR?
The facts the Code asks a decision-maker to weigh. Send them in writing, with dates.
- The rule or standard that was broken, and how the employee knew about it (section 8(2)(a) and (b)).
- What happened, with dates, messages, emails and any witnesses.
- The harm or risk to the work (section 8(2)(d)).
- Any performance plan, earlier warning or coaching, and what the employee was told (section 6(6) and section 9(3)).
- How similar cases were treated before (section 10).
- The employee’s length of service and record (section 9(5)).
What if the employee stops responding?
The Code asks that the employee be given the opportunity to respond. It does not say what follows when they do not take it.
What to do is therefore a matter for the EOR and a South African employment lawyer on the facts. What you can do now is keep the proof. Record every attempt to reach the employee, the dates, the channels and the time allowed. Send written notices to every address and channel on record. A clear paper trail is what the employer will need if the employee later says they were never told.
How long does it take?
The Code sets no timetable. It asks for a “reasonable period of time” to prepare (section 11(4)(b)), so the speed depends on the case.
The main fixed deadline in the law is the employee’s. They have 30 days from the dismissal, or from the employer’s final decision if later, to refer the dispute, so every document you collect may be read again at the CCMA.
Could South Africa’s temporary employment service rule change this?
Possibly, for some arrangements, so ask before you rely on the split above.
The Labour Relations Act can treat a business that, for reward, provides workers to a client and pays them as a “temporary employment service”, and as the employer of those workers (section 198). The client and the service can be jointly and severally liable if the service breaches the Basic Conditions of Employment Act or certain collective agreements (section 198(4)).
For employees below the earnings threshold set under the Basic Conditions of Employment Act, section 198A goes further. Work for a client is a temporary service only if it lasts no more than three months, covers an absent employee, or falls in a category set by a collective agreement, sectoral determination or ministerial notice (section 198A(1)). An employee who is not doing a temporary service can be deemed to be the employee of the client, and the client deemed to be the employer (section 198A(3)(b)). The section does not apply above the threshold (section 198A(2)).
The Act does not decide by label whether an EOR arrangement counts as a temporary employment service. Ask your provider in writing how it treats its South African arrangements, and check the current threshold at the Department of Employment and Labour.
Where are the rules for the UK, the Netherlands and Spain?
In each of these countries the legal employer usually runs the formal steps, and you supply the facts. The steps themselves differ by country, so use the local guide.