In January 2025, the Department of Employment and Labour released its Draft Code of Good Practice on Dismissal for public comment. This proposed framework aims to give employers and employees clearer direction on how dismissals should be handled, covering misconduct, incapacity, and for the first time dismissals arising from operational requirements. While the draft largely retains the substance of the existing code, it introduces refinements intended to make dismissal procedures more comprehensive and accessible.
Operational Requirements and Retrenchments
The Draft Code integrates retrenchment guidance into the broader dismissal framework. It provides a standardised layout for section 189(3) notices, ensuring that employers present key information in a consistent format when notifying employees of potential retrenchments. The actual list of required disclosures remains the same as those outlined in the Labour Relations Act 66 of 1995, but the structured template is intended to promote clarity and transparency in the process.
Probationary Employment
The new draft acknowledges that probation serves a dual purpose, assessing both the performance and the suitability of new employees. It offers employers more flexibility to terminate employment during probation if performance is lacking or the individual is otherwise unsuitable for the role. This is a departure from the existing code’s narrower focus on performance alone.
Incapacity
Provisions dealing with incapacity through ill health or injury remain consistent with the current code. However, the Draft Code expands the concept of incapacity to include situations where an employee cannot integrate into the organisation’s culture or work effectively with colleagues. This broadening recognises that factors beyond health may legitimately impact an employee’s ability to fulfil their role.
Industrial Action and Misconduct
Dismissals linked to participation in unprotected strike action receive more detailed treatment. The Draft Code requires employers to consider factors such as the behaviour of both parties, the validity of the strikers’ demands, the timing and length of the strike, and any harm caused. It also prescribes a clearer process for handling strike-related misconduct before dismissal is contemplated.
Provisions for Small Businesses
Recognising the constraints faced by smaller employers, the Draft Code confirms that the complexity and detail of disciplinary processes may vary according to the size and nature of the business. It acknowledges that small businesses often lack the resources to conduct lengthy investigations or elaborate hearings and allows for appropriately scaled procedures.
Standards for Fair Dismissal
As with the current code, the Draft Code affirms that where a dismissal is not automatically unfair, an employer must demonstrate that it was effected for a fair reason and in line with fair procedure. Notably, the draft removes the explicit requirement that the reason be linked to conduct, capacity, or operational requirements, instead focusing on whether the action meets the overarching test of fairness.
Overall Impact
Rather than introducing sweeping changes, the Draft Code seeks to clarify, refine, and better integrate existing provisions. It emphasises procedural fairness, consistency, and clear communication, aiming to make dismissal processes more predictable and easier to navigate for both employers and employees.
Although it is not yet in force, employers should review the Draft Code carefully and consider aligning their internal policies now, to ensure smooth compliance when the final version takes effect.
Disclaimer: This article reflects the personal opinion of the author and is intended for informational purposes only. It should not be relied upon as a complete statement of the law. Professional legal advice should be sought before acting on any aspect discussed herein. Neither the author nor the firm accepts liability for any actions taken based on this content without further written confirmation.
