The Minister of Employment and Labour, Nomakhosazana Meth, has gazetted a new code of practice for the dismissal of employees. <\/p>\n\n\n\n
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. <\/p>\n\n\n\n
Nadeem Mahomed and Sashin Naidoo from Cliffe Dekker Hofmeyr said the code provides comprehensive and practical guidelines to employers, employees and trade unions. <\/p>\n\n\n\n
This includes matters related to misconduct, incapacity, and operational requirements, i.e. retrenchments, under the Labour Relations Act.<\/p>\n\n\n\n
The final code ultimately mirrors the draft code released for comment on 22 January 2025.<\/p>\n\n\n\n
The experts said the code is incredibly general and allows for departures in appropriate circumstances, particularly for small businesses.<\/p>\n\n\n\n
Regarding the code\u2019s substance, it confirms that dismissals must have a procedurally fair process linked to conduct, capacity or operational requirements.<\/p>\n\n\n\n
Moreover, the process needs to be context-appropriate. Dismissal is reserved for cases where continued employment is intolerable. <\/p>\n\n\n\n
However, the code allows small businesses flexibility in applying disciplinary and consultation procedures. <\/p>\n\n\n\n
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. <\/p>\n\n\n\n
It also signals a legislative move towards a decriminalised approach to procedural fairness. <\/p>\n\n\n\n
Generally, employees involved in similar misconduct under similar circumstances should receive comparable sanctions.<\/p>\n\n\n\n
However, if the misconduct damages the employment relationship irreparably, dismissal can be fair, even if it’s inconsistent with prior sanctions. <\/p>\n\n\n\n
The code also guides on probationary periods, such as a reasonable duration and a less onerous justification for non-confirmation. <\/p>\n\n\n\n
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. <\/p>\n\n\n\n
Misusing probation as a mechanism to deprive employees of permanent employment status may constitute an unfair dismissal. <\/p>\n\n\n\n
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. <\/p>\n\n\n\n
The code of practice can be found below: <\/p>\n\n\n\n