Africa-Press – South-Africa. The Minister of Employment and Labour, Nomakhosazana Meth, has gazetted a new code of practice for the dismissal of employees.
The code became effective from the date of publication, 4 September, and repeals the previous Schedule 8 Code of Good Practice on Dismissal and the Code of Good Practice Based on Operational Requirements.
Nadeem Mahomed and Sashin Naidoo from Cliffe Dekker Hofmeyr said the code provides comprehensive and practical guidelines to employers, employees and trade unions.
This includes matters related to misconduct, incapacity, and operational requirements, i.e. retrenchments, under the Labour Relations Act.
The final code ultimately mirrors the draft code released for comment on 22 January 2025.
The experts said the code is incredibly general and allows for departures in appropriate circumstances, particularly for small businesses.
Regarding the code’s substance, it confirms that dismissals must have a procedurally fair process linked to conduct, capacity or operational requirements.
Moreover, the process needs to be context-appropriate. Dismissal is reserved for cases where continued employment is intolerable.
However, the code allows small businesses flexibility in applying disciplinary and consultation procedures.
It also emphasised that the purpose of a fair procedure is to foster dialogue and reflection, and reflects the court’s view regarding the informal nature of disciplinary hearings.
It also signals a legislative move towards a decriminalised approach to procedural fairness.
Generally, employees involved in similar misconduct under similar circumstances should receive comparable sanctions.
However, if the misconduct damages the employment relationship irreparably, dismissal can be fair, even if it’s inconsistent with prior sanctions.
The code also guides on probationary periods, such as a reasonable duration and a less onerous justification for non-confirmation.
It also looks at incapacity, including incompatibility, ill-health and poor performance, as well as participation in unprotected strikes, including the issuing of ultimatums and providing sufficient time to comply.
Misusing probation as a mechanism to deprive employees of permanent employment status may constitute an unfair dismissal.
Finally, the code integrates retrenchment guidance, requiring written notice, good faith consultation on alternatives, fair and objective selection criteria, statutory severance, and preferential re-employment.
The code of practice can be found below:
Dismissal- Code of PracticeDownload
Second big change this week
The new dismissal code was issued shortly after the Employment Equity Reporting period officially opened in South Africa.
The submission of EE reports for the 2025 reporting period began on Monday, 1 September.
This aligns with the Employment Equity Amendment Act of 2022, which became operational from 1 January 2025.
The new law mainly applies to businesses that employ 50 or more people and requires that their workforces show the country’s demographics at all levels.
The department has thus set out specific numerical targets across 18 industries in South Africa that businesses must fill with ‘designated employees’.
These designated employees include black (African, Coloured and Indian), female and disabled workers.
Failure to see employers face fines of up to R1.5 million or 2% of turnover, and have their Employment Equity Compliance Certificates, which are necessary for state contracts, withdrawn.
Under the EE Act, designated employers must prepare and implement an EE plan from 1 September 2025 until 31 August 2030.
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