.png)
South Africa’s labour landscape has undergone a significant shift with the introduction of the new Code of Good Practice: Dismissal, gazetted under the Labour Relations Act, 1995. This updated Code replaces the previous Schedule 8 and operational requirements codes, offering a more integrated and contemporary framework for managing dismissals in the workplace.
At Van Deventer & Van Deventer Inc., we are committed to keeping our clients informed of key legal developments that impact their businesses and employment practices. Below, we unpack the most important aspects of the new Code and what they mean for employers and employees alike.
A Modernised Approach to Dismissals
The new Code is designed to balance the rights of employees with the operational needs of employers. It promotes employment justice, encourages fair and efficient dispute resolution, and supports sustainable business practices.
Importantly, the Code recognises the realities of different workplace environments, offering flexibility for small businesses while maintaining the core principles of fairness and due process.
Key Features of the New Code
1. Grounds for Fair Dismissal
Dismissals remain permissible on the following grounds:
- Misconduct
- Incapacity (including poor performance or ill health)
- Operational requirements (retrenchments)
Each category is accompanied by detailed guidance to ensure both substantive and procedural fairness.
2. Misconduct
The Code reinforces a corrective, rather than punitive, approach to misconduct. Dismissal is only appropriate where the misconduct is severe enough to make continued employment intolerable. Employers must consider:
- The nature and seriousness of the misconduct
- The employee’s disciplinary history
- Whether progressive discipline could be effective
3. Procedural Fairness
A fair process is non-negotiable. Employers are required to:
- Inform the employee of the allegations in writing
- Provide a reasonable opportunity to respond
- Allow representation by a fellow employee or union representative
- Conduct a fair and impartial inquiry
4. Probationary Employment
The Code clarifies that probation is a period for assessing an employee’s suitability. Employers must:
- Offer guidance and support during probation
- Provide feedback and opportunities for improvement
- Follow fair procedures before terminating employment
5. Incapacity
Dismissals for incapacity must be handled with sensitivity and fairness. Employers are expected to:
- Assess the employee’s performance or health condition
- Offer assistance and reasonable accommodation
- Explore alternatives to dismissal
6. Retrenchments
The Code outlines a structured process for dismissals based on operational requirements, including:
- Meaningful consultation with affected employees or unions
- Use of fair and objective selection criteria
- Disclosure of relevant information
- Consideration of alternatives to retrenchment
- Payment of severance and possible re-employment
Implications for Employers
Employers must review and update their internal policies and procedures to align with the new Code. This includes:
- Revising employment contracts and disciplinary codes
- Training HR personnel and line managers
- Ensuring compliance with procedural requirements
Failure to adhere to the updated Code may result in findings of unfair dismissal, with significant legal and financial consequences.
How We Can Help
At Van Deventer & Van Deventer Inc., our Employment Law team is well-versed in the latest legislative developments. We offer:
- Tailored advice on compliance with the new Code
- Drafting and reviewing employment contracts and policies
- Representation in disciplinary hearings and CCMA disputes
- Strategic guidance on retrenchments and restructuring
Contact us today to ensure your business is compliant and protected under the new legal framework.