25 April 2025
In a notable shift in South African labour law, the Department of Employment and Labour released a new Draft Code of Good Practice on Dismissal, published for public comment earlier this year. Building on Schedule 8 of the Labour Relations Act 1996 (LRA), this Draft Code provides expanded guidance on the processes and principles surrounding all forms of dismissal — from misconduct to retrenchment. The Draft Code expands on the Current Code and now addresses all aspects leading to the termination of employment, including dismissals based on the employer’s operational requirements.
The most significant changes include:
Application to small businesses
As with the Current Code, the Draft Code recognises that the form and content of disciplinary rules will vary depending on the size and nature of the employer’s business. The Draft Code, however, explicitly acknowledges that small businesses cannot reasonably be expected to engage in time-consuming investigations or pre-dismissal processes and that they may not have human resource departments staffed by people with skills and experience.
Misconduct
The Draft Code’s approach to misconduct aligns with the objective of the LRA of expedient dispute resolution. In this regard, the Draft Code emphasises the legitimacy of informal disciplinary processes, recognising that formal procedures do not have to be followed every time a rule is broken. It also recognizes that employers may depart from the relevant regulations and guidelines when there is justification for doing so but points out that the employer may be obliged to justify its departure should the employee refer to an unfair dismissal dispute questioning the fairness of the process.
Dismissal and industrial action
The Current Code deals with dismissal for participation in strike action that does not comply with the provisions of the LRA. The Draft Code seeks to expand on this by introducing factors that employers need to consider in assessing the seriousness of the contravention (alleged act of misconduct), including the conduct of the parties, the legitimacy of the strikers’ demands, the duration and timing of the strike, and the harm caused by the strike. Further, the Draft Code expands on the process that an employer should follow before an employee is dismissed for any misconduct related to industrial action.
Probation
One of the more significant changes in the Draft Code is that the provisions relating to probation have been slightly relaxed, making it easier for employers to terminate employment during this period for poor work performance and misconduct. It must be remembered that the Code is a Guideline and not part of the LRA. An employer is not automatically entitled to breach the LRA because of the contents of the COGP.
Poor work performance after probation
The Draft Code has retained the current guidelines (albeit slightly relaxed) in cases of dismissal for poor work performance and further requires consideration of whether the required performance standard was reasonably achievable as one of the factors in determining whether the dismissal was fair.
A significant development in this respect is the clarification of poor performance management for managerial and senior employees whose knowledge and experience enables them to judge whether their performance is adequate, and those employees with a high degree of professional skill where a departure from the required standards would have severe consequences.
Operational requirements
Significantly, the Draft Code now also covers retrenchments. In this regard, it includes specific provisions and issues currently contained in the Code of Good Practice on Dismissal Based on Operational Requirements (Retrenchment Code), with some elaboration and amendment.
One of the notable differences as compared with the current Retrenchment Code is that the Draft Code provides a form for the section 189(3) notice that addresses the information required to be disclosed by the employer in tabular question form.
Conclusion
The Draft Code seeks to deal with all forms of dismissal under one Code in a manner that is clearly discernible and easy to follow. It does not make extensive amendments to the Current Code but has certain noticeable relaxations and expanded requirements to ensure that dismissals are for a fair reason and follow a fair procedure, considering the nature and size of the employer.
Employers are not obligated to amend their internal codes or procedures at this point. However, UASA encourages employers to familiarise themselves with the Draft Code and keep abreast of any further changes that may arise in the finally-promulgated Code. Employers would be well-advised to adhere to the prescripts of procedural and substantive fairness in any process leading to an employee’s dismissal to avoid disputes.
Ref: www.labour.gov.za www.bizcommunity.com