By Kevin Rademeyer.
South Africa ushered in a new Code of Good Practice on Dismissal, replacing Schedule 8 of the Labour Relations Act and the Code governing dismissals based on operational requirements. Gazetted by Employment and Labour Minister Nomakhosazana Meth, the Code consolidates and expands on principles developed in case law over the past two decades, while introducing important clarifications for both employers and employees.
Broader Purpose
The Code provides comprehensive guidance on dismissals arising from misconduct, incapacity and operational requirements. It also codifies the evolving approach to probation, performance management and strike-related dismissals.
Labour law experts Kevin Rademeyer and Rialize Jansen Van Rensburg from RJVR Attorneys, described the Code as “incredibly general, but fundamental to the changing work environment”, noting that it allows “flexibility to depart from strict procedural formality in appropriate circumstances, particularly for small businesses”.
Rialize Jansen Van Rensburg noted that “we have tons of clients whose main aim and focus is on making money. They believe that stringent procedures and strict codes have a negative effect on their operations. Often employees who commit great acts of misconduct stay employed for long periods to ensure that every checklist is ticked. This new code tries to minimize this, whilst still ensuring a fair process”.
Fairness as the Core Principle
While much of the framework remains familiar, the Code reaffirms that dismissals must be substantively and procedurally fair. Substantive fairness requires a valid reason linked to conduct, capacity or business need. Procedural fairness, meanwhile, must be proportionate to the circumstances, with dialogue and reflection emphasised over rigid compliance.
Dismissal is expressly reserved for cases where continued employment has become untenable. Employers are reminded that corrective measures, including counselling or warnings, should be considered before termination.
Key Developments
Flexibility for Small Businesses
The Code acknowledges the operational realities of smaller enterprises, allowing less formal disciplinary and consultation processes, provided the principles of fairness are maintained.
Misconduct
Progressive discipline remains the guiding principle. Formal disciplines are not mandated but remain advisable, especially where a dismissal may be challenged at the Commission for Conciliation, Mediation and Arbitration (CCMA). Consistency in sanctions is encouraged, though dismissal may still be fair where trust has been irreparably damaged.
Probation and Performance
The purpose of probation has been extended beyond performance assessment to include overall suitability for employment. The Code stresses that probation cannot be used to avoid granting permanent status and misuse could amount to unfair dismissal. Dismissals during probation require less onerous justification, but employees must still be given reasonable opportunity to improve.
Incapacity
Beyond poor performance and ill health, incapacity now explicitly includes incompatibility, defined as the inability of an employee to integrate into the workplace or function effectively with colleagues. Employers must investigate the extent of incapacity, explore alternatives, and provide employees with an opportunity to respond.
Operational Requirements and Retrenchments
The Code consolidates retrenchment principles, requiring meaningful consultation, fair and objective selection criteria, and statutory severance. Preferential re-employment for retrenched workers is encouraged when comparable positions become available.
Unprotected Strikes
Revised provisions reflect recent case law. Employers must issue clear ultimatums, allow sufficient time for compliance, and consult with trade unions or employee representatives before considering dismissals.
Implications for Employers
While the Code largely restates existing principles, it reinforces the need for context-sensitive application. Formalism is no longer the benchmark; fairness and proportionality are. Employers, particularly in the small business sector, gain more flexibility but also carry a heavier burden to justify deviations from standard procedures.
Kevin Rademeyer cautions that employers should review workplace policies to ensure alignment with the Code, paying particular attention to probation, incompatibility and retrenchment processes.
A Shift in Tone
The new Code signals a gradual move towards a less punitive, more restorative approach to workplace discipline. By embedding flexibility while retaining fairness as the guiding principle, it aims to balance business efficiency with employee protection.
As South African workplaces adjust, the true test will lie in how the CCMA and Labour Court interpret and apply these provisions in practice.