Written by Michelle Naidoo & Diyara Ishwarlall

Mooney Ford Attorneys

The Code of Good Practice: Dismissal, contained in Schedule 8 of the Labour Relations Act, is an indispensable tool in a chairperson’s or arbitrator’s toolbox. Over the past 23 years there were no significant amendments to this Code.

On 22 January 2025, the Minister of Employment and Labour published a new draft Code. The public comment phase is open for a period of 60 days.

Purpose and objectives of the new draft code

The new draft Code seeks to modernise and clarify guidance for employers, employees, trade unions, and other stakeholders on the legal obligations surrounding dismissals. It aligns with the Labour Relations Act (LRA) and addresses misconduct, incapacity, and operational requirements, focusing on balancing fairness with practicality.

Innovations include:

• Enhanced support for small businesses

Recognising the unique challenges faced by small businesses, the draft Code offers tailored, practical guidance to assist in managing discipline and dismissals effectively while complying with legal standards.

• Support of informal approaches to discipline

The new draft Code reinforces the principle that formal disciplinary procedures are not always necessary. Instead, it advocates for informal advice and correction as a constructive approach to addressing minor infractions. This ensures that disciplinary actions are proportional and conducive to maintaining workplace harmony.

• Factors influencing sanctions

Enhanced guidelines when deciding on appropriate sanctions for misconduct, Employers must consider:

• The nature and seriousness of the misconduct and its impact on business operations;
• The employee’s role and the requirements of their job;
• Whether progressive discipline could prevent a recurrence;
• The employee’s acknowledgment of wrongdoing and willingness to comply with rules; and
• The employee’s length of service, disciplinary record, and personal circumstances, including the effect of dismissal on their livelihood.
• Operational requirements and retrenchment

Guidelines for dismissals based on operational requirements, including, issuing notices of possible retrenchments; and facilitating transparent and consultative processes to explore alternatives before dismissals are finalised.  Employers are encouraged to adopt measures that minimise job losses and address the impact of retrenchments fairly and compassionately.

• Probation and Performance Management

Enhanced guidelines for managing employees during probationary periods. Employers must afford probationary employees the opportunity to make representations before deciding not to confirm their permanent appointment; and document the reasons for such decisions, which may require less justification compared to dismissals after probation.

The factors to be considered for a substantively fair dismissal for workplace misconduct remain substantially the same:

• Whether the employee contravened a valid workplace rule or standard?
• Whether the employee was aware of the rule?
• Whether the rule was valid/reasonable?
• The importance of the rule and its consistent application?
• The harm caused by the contravention?
• The appropriateness of dismissal as a sanction in the circumstances.

The requirements for procedural fairness remains substantially the same:

For a dismissal to be procedurally fair, the new draft Code specifies key requirements to ensure due process. Employers must:

• Notify employees of allegations in writing;
• Provide a reasonable opportunity for employees to prepare and respond to allegations;
• Allow employees to be assisted by a trade union representative or fellow employee; and
• Communicate in a language the employee understands, wherever possible.

In exceptional cases, where strict adherence to these requirements is impractical, employers may depart from these guidelines. However, they must justify such deviations, particularly if the fairness of the dismissal is later disputed.

Implementation and Next Steps

Employers and HR practitioners are urged to familiarise themselves with the new draft Code and proactively assess how it will impact their current policies and procedures.

For training on the new draft Code of Good Practice, more information or drafting of employment related policies, contact Michelle Naidoo at Mooney Ford Attorneys via email at michellen@mfp.co.za.

Photo by Luca Bravo on Unsplash