Last week, the new Code of Good Practice: Dismissal (‘the Code’) came into effect following its recent publication in the Government Gazette. Significantly, the Code establishes a unified framework for employees, employers, and trade unions by replacing and consolidating the long-standing Schedule 8 Code of Good Practice on Dismissals and the Code of Good Practice Based on Operational Requirements.
Signalling a modernisation of the legal framework regulating dismissals under South African law, the Code provides guidance on dismissing workers for incapacity, misconduct, and operational requirements, namely retrenchments in terms of the Labour Relations Act. Notably, the Code is formulated generally and allows reasonable departures where circumstances permit, especially for small businesses. Recognising that employers and employees should ‘treat each with mutual respect’, the Code’s key features include:
- Providing guidance on probationary periods, participation in unprotected strikes, and incapacity based on ill health and poor performance;
- Re-emphasising that dismissals must still be substantively and procedurally fair, whether based on incapacity, operational requirements, or misconduct;
- Adopting a flexible approach, the Code allows small businesses to follow simpler steps when following disciplinary or consultative processes – particularly if they lack formal HR structures;
- Clarifying that probation is aimed at assessing both performance and suitability;
- Expanding the scope of ‘incapacity’ to include broader grounds, such as incompatibility and imprisonment; and
- Outlining a list of aspects that should be included in the notice of intended retrenchment to affected employees, such as the reasons for retrenchment, selection criteria, possible alternatives, and severance.
Based on these and other considerations, employers are encouraged to review and align their HR policies, train staff on any updated aspects, and ensure their disciplinary, probationary, and retrenchment processes comply with the Code. Similarly, employees and trade unions should familiarise themselves with the core elements of the Code.
For expert legal assistance with reviewing your current policies and practices, chairing in-house disciplinary matters, or conducting presentations on applicable laws, contact our specialist labour law attorneys at labour@stbb.co.za.
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