The Minister of Employment and Labour published the new Code of Good Practice: Dismissals, on 4 September 2025. The new Code abolishes the previous Code that was in place for at least 20 years.
The new Code introduces key changes bringing more flexibility in labour matters and allowing for faster and more streamlined processes. Key changes include, less rigid processes for small business when handling disciplinary matters and now also incorporating retrenchments with some elaboration and amendments.
In matters pertaining to misconduct, fair procedure requires dialogue between the parties and emphasizes the importance of giving an employee the opportunity to respond to allegations. Whilst the process is less formal, it still important to be guided by the substantive merits of the case.
Misconduct during strike action also considers whether the strike was in response to unlawful, unfair or unreasonable conduct by an employer. An employer is required to issue an ultimatum, and the employee’s response to the ultimatum will guide whether a dismissal was warranted or not.
Employees on probation should be given a reasonable period to prove their ability to perform and their suitability for employment. An employer must give an employee reasonable guidance, that may include training or counselling to the employee. Where there is no improvement in performance, an employee must be provided with an opportunity to make representations. The employer must consider those presentations. Reasons for dismissals on expiry of probation may be less compelling than when an employee is permanent.
Incapacity based on poor performance requires an employer to demonstrate that the required performance was reasonable and achievable. On the other hand, an employer may not be required to warn employees who are managers, and senior employees whose knowledge and experience enables them to judge whether their performance is adequate and employees with a high degree of professional skill, of their poor performance.
Incompatibility is recognized as an inability to work in harmony with an employer’s business, or culture or with other employees. This may be considered as a form of incapacity, which may justify dismissal.
Dismissals due to operational requirements no longer have their own Code, but are included in the new Code.
Although the Code provides for less stringent processes, employers are still bound by their own disciplinary codes and procedures. It is incumbent on employers to review their codes and align them with the new Code.
Members seeking advise or assistance on any aspect of this new Code are invited to reach out to the staff of the Industrial Relations Division on (011) 298 9400.
Vuyiswa Miya-Mokwana
Industrial Relations Executive
