To dismiss, or first investigate?

In this article, Wessel draws on his experience in both health and safety and labour law to consider a practical question that arises after every serious mining incident: should the employer move straight to dismissal, or first complete a proper investigation? He argues for a disciplined middle course, one that uses precautionary suspension where necessary, preserves the integrity of the investigation, and ensures that any disciplinary outcome is based on properly tested facts rather than instinct or pressure.

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Should a mine dismiss an employee immediately after a serious safety incident or fatality? In most cases, no. The better course is to investigate fast, preserve evidence, use precautionary suspension only where it is genuinely necessary, and then take disciplinary action on properly tested facts. That approach is not soft. It is usually the most defensible way to protect the workforce, the integrity of the investigation, and the fairness of the eventual disciplinary outcome.

That is also the direction in which best practice has moved. In South Africa, the Mine Health and Safety Act is built around a culture of health and safety, effective investigation, and properly targeted systems of control. The employer must investigate accidents, serious illnesses and health threatening occurrences, and section 11(5A) requires that investigation to be completed within 30 days, unless the Principal Inspector of Mines permits a longer period. The Department of Mineral and Petroleum Resources also continues to emphasise mandatory codes of practice under section 9(2), which means that health and safety systems, instructions and responses should already be documented before an incident happens.

In labour law, the same point presents itself differently. Dismissal remains the most serious sanction and must still be substantively and procedurally fair. South Africa’s new Code of Good Practice on Dismissal, which took effect on 4 September 2025, replaced the old Schedule 8 framework and modernised the guidance employers use when dealing with misconduct, incapacity and operational dismissals. In a mining health and safety setting, that matters because the pressure to act quickly after a fatality or serious injury must still be balanced against fairness, proportionality and proper investigation.

The practical question is therefore not whether safety misconduct is serious. It usually is. The practical question is whether the employer knows enough, early enough, to dismiss fairly. Very often the answer is no. In the first days after a serious incident, the facts are still moving. Witness accounts are incomplete. Physical evidence may still be under examination. Statutory appointees, supervisors, contractors and systems failures may all be in issue at the same time. A rushed dismissal can therefore create three avoidable problems. It may remove a key witness from the employer’s sphere of control. It may harden positions before the facts are clear. And it may force the employer to defend a dismissal on an incomplete factual record. That is a poor place from which to litigate.

This is where precautionary suspension has a real role, but only if used properly. Suspension is not a sanction. It is a temporary measure used to protect the investigation, the workplace, other employees, or in some cases the employee under investigation. Modern best practice is clear that suspension should not be automatic, should not be punitive, and should be used only after considering alternatives such as temporary redeployment, restricted duties, removal from a particular system or area, or separation from witnesses. In the South African context, the same principle remains sound. If suspension is used, it should be on full pay, for no longer than reasonably necessary, and in line with the employer’s disciplinary code and the needs of the investigation.

International mining practice has also moved beyond asking only who broke a rule. The stronger question is which critical controls failed, whether those controls were properly identified, who was accountable for them, and whether they were verified in practice. The lesson is obvious. A defensible disciplinary response after a fatality or serious injury should be informed by a proper control failure analysis, not only by an instinct to find an individual culprit.

That same international trend also places greater weight on worker participation, root cause analysis, and corrective action. In other words, a good investigation asks not only what happened, but why it was able to happen, whether similar failures exist elsewhere on site, and what must change immediately. For mining employers, that means the disciplinary process should sit alongside the incident investigation, not replace it. One process deals with accountability. The other deals with learning, correction and prevention. Confusing the two usually weakens both.

In our view, the best disciplinary codes for mining operations now do five things clearly. They categorise health and safety misconduct properly rather than hiding it inside generic misconduct provisions. They allow for precautionary suspension on full pay where the facts justify it. They create enough flexibility to investigate serious incidents properly without unrealistic internal deadlines. They require employees to cooperate in investigations and inquiries. And they link disciplinary decision making to the mine’s broader health and safety architecture, including codes of practice, critical controls, training records and documented instructions. That is where a disciplinary code stops being a human resources document and becomes part of the mine’s risk management system.

So, to dismiss or not to dismiss? The better answer is this: do not dismiss too early, and do not suspend by reflex. Investigate quickly. Protect the evidence. Separate people only where there is a real reason to do so. Test the facts against the mine’s safety rules, statutory duties and critical controls. Then make the disciplinary decision on a record that is fair, complete and capable of withstanding scrutiny. In a serious health and safety environment, that is not caution for its own sake. It is disciplined management.

Written By: Wessel Badenhorst

Date: February 2026