Yes, even for a small amount, if you can prove it and follow a fair procedure. What the LRA requires and the 2025 Code of Good Practice: Dismissal (which replaced Schedule 8) recommends, step by step, and where employers lose at the CCMA.
Section 188(1) of the Labour Relations Act 66 of 1995 (LRA) makes a dismissal unfair unless the employer proves a fair reason related to the employee's conduct, capacity or operational requirements (s.188(1)(a)) and a fair procedure (s.188(1)(b)). Theft is conduct. Section 188(2) requires whoever decides the case to take into account any relevant code of good practice, here the Code of Good Practice: Dismissal (the 2025 Code, General Notice 3470 of 4 September 2025, which replaced the original Schedule 8).
Item 7 of the 2025 Code allows dismissal for serious misconduct where it renders continued employment intolerable, and item 7(2) confirms that can be a single instance. Theft by an employee is the classic example in the case law (Anglo American Farms v Komjwayo), so a first proven act of theft can justify dismissal without a prior warning. What sinks employers is proof and process, not the law.
The 2025 Code (General Notice 3470 of 2025, GG 53294) took effect on 4 September 2025 and repealed the old Schedule 8 Code from that date. The item numbers below are to the 2025 Code.
Less than most employers expect. In Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) the Labour Appeal Court upheld the dismissal of a waiter who took a single can of cool drink: theft breaks the trust relationship whatever the amount.
It is not automatic. Item 9 of the 2025 Code treats dismissal as generally appropriate only where a continued employment relationship is intolerable, and lists five factors to weigh: the nature and requirements of the job; the nature and seriousness of the misconduct and its effect on the business; whether progressive discipline might prevent a recurrence; any acknowledgement of wrongdoing and willingness to comply; and the employee's circumstances (length of service, disciplinary record and the effect of dismissal on the employee). In Sidumo v Rustenburg Platinum Mines [2007] ZACC 22 the Constitutional Court confirmed that the commissioner decides for themselves whether dismissal was fair. Awards go against employers where the item was trivial, the service long and clean, and staff genuinely believed they could take it. Record your reasoning on these factors.
Item 8 lists what anyone deciding whether a sanction for misconduct is fair should consider. Build your file around it.
Item 11 sets out what should usually happen before a decision to dismiss. An investigation or enquiry does not have to be formal (item 11(3)). Notify the employee of the allegations, preferably in writing (11(4)(a)) and in sufficient detail (11(5)); allow a reasonable period to prepare and to make representations on both the allegations and the appropriate sanction (11(4)(b)); let them be assisted by a fellow employee or trade union representative (11(4)(c)); and, where reasonably possible, use a language the employee is comfortable with (11(4)(d)). Item 11(6) lets you dispense with some or all of this in exceptional circumstances where you cannot reasonably be expected to comply, but you may have to justify that if the employee refers a dispute. Avril Elizabeth Home v CCMA (2006) confirms this is not a criminal trial. In practice:
If the employee's presence risks interference with evidence or witnesses, suspend them in writing pending the hearing, on full pay. In Long v South African Breweries [2019] ZACC 7 the Constitutional Court held that a precautionary suspension on full pay does not need a hearing first. Suspension as a sanction is different: footnote 2 to item 6 of the 2025 Code lists suspension among the graduated disciplinary measures, and like any sanction it should follow a fair procedure. Suspending without pay before the hearing risks being treated as a sanction, and an unfair suspension is an unfair labour practice (LRA s.186(2)(b)).
Gather what proves the act: CCTV, till or stock records, witness statements, the item, any admission. The investigator should not chair the hearing. If the employee is a shop steward or a union office-bearer or official, item 11(7) says discipline should not be started without first informing and consulting the union.
In writing, in a language the employee understands.
| What to include | Why |
|---|---|
| The allegation in plain words: what, when, where, value, and that dismissal is a possible sanction | So the employee knows what to answer and what is at stake. |
| The rule breached, referenced to your code | Ties the charge to item 8. |
| Date, time and venue of the hearing | The Code says only "a reasonable period" (item 11(4)(b)); 48 hours is the practical minimum most codes and commissioners work from, longer if the case is complex. |
| Rights: a fellow employee or union representative, an interpreter where reasonably possible, witnesses | Item 11(4)(c) (assistance) and 11(4)(d) (a language the employee is comfortable with, where reasonably possible). Calling and questioning witnesses is part of the opportunity to respond (items 11(2) and 11(4)(b)). A lawyer is not a right unless your code allows it. |
Charge the conduct, not the crime. "Theft" needs intent, which is hard to prove when the employee says they meant to pay. Most codes use "unauthorised possession or removal of company property" as the main or alternative charge.
An impartial chairperson: not the complainant, the investigator or the manager who caught the employee. Present the evidence, let the employee respond and question witnesses, then hear mitigation after a finding of guilt. Record it.
Decide guilt on the balance of probabilities, then sanction against the item 9 factors. A cashier or storeman holds a position of trust, which counts against them. Write the reasoning down.
Give the reason in writing and remind the employee of the right to refer to the CCMA or council. The 2025 Code no longer spells this out, but it is still the safest practice and the written reasons are your evidence under s.192(2). If your code provides an appeal, allow it. Keep the record (item 13).
Dismissal for serious misconduct may be summary: BCEA s.37(6)(b) preserves the right to terminate without notice for a cause recognised by law. Everything else is still due:
No severance pay: BCEA s.41 applies to retrenchment only. If you pay notice instead, the periods are in BCEA s.37.
Under LRA s.191(1)(b)(i) the employee has 30 days from the dismissal, or from your final decision on an internal appeal if later, to refer the dispute to the bargaining council for your sector or, if no council has jurisdiction, to the CCMA (s.191(1)(a)). MIBCO, MEIBC, NBCRFLI and NBCCI run their own; see our bargaining council guide. Late referrals need condonation (s.191(2)). Misconduct dismissals go to conciliation, then arbitration (s.191(5)(a)).
The employee only has to prove there was a dismissal; you must prove it was fair (s.192). If you lose, reinstatement or re-employment is the primary remedy (s.193(2)) unless an exception applies, for example a continued relationship would be intolerable or the unfairness was only procedural. Compensation is capped at 12 months' remuneration (s.194(1)).
Yes, if you prove it on a balance of probabilities and follow a fair procedure. Item 7 of the 2025 Code allows dismissal for serious misconduct that renders continued employment intolerable, and item 7(2) confirms that can be a single instance; in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) the Labour Appeal Court upheld the dismissal of a waiter who took one can of cool drink. Still weigh the item 9 factors: the job, the seriousness of the misconduct, whether progressive discipline would prevent a recurrence, any acknowledgement of wrongdoing, and the employee's service, record and circumstances.
No. The hearing and the criminal case are separate. Your hearing uses a balance of probabilities, not proof beyond reasonable doubt, and can proceed even if no charge is laid or the police case is withdrawn. An acquittal does not make the dismissal unfair.
Only with the employee's written agreement for that specific debt, or under a law, collective agreement, court order or arbitration award (BCEA s.34(1)). A deduction for loss must also meet s.34(2): fault, a fair procedure, no more than the actual loss, and total deductions capped at one quarter of remuneration. Otherwise pay in full and recover the loss separately.
30 days from the date of dismissal, or from the date you finalise an internal appeal if later (LRA s.191(1)(b)(i)). Late referrals need condonation (s.191(2)). You carry the onus of proving the dismissal was fair (s.192(2)).
Compliance Radar's disciplinary module runs this process end to end: case file, charge sheet, recorded hearing, evidence chain and a CCMA-ready bundle export, in line with the Code of Good Practice: Dismissal (2025). Its labour-law assistant answers questions like this one with the section cited. See how it works or talk to us. More guides, including our labour law compliance checklist, are at /guides.
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