The Code of Good Practice on Dismissals (COP), published in the Government Gazette on 4 September 2025, introduces significant developments to Schedule 8 of the Labour Relations Act, 1995 (LRA). It outlines updated guidance on the fairness of dismissals, with implications for employers across a range of dismissal scenarios, including dismissals linked to poor performance, misconduct, incapacity, participation in unprotected strikes, and operational requirements.
The COP repeals both Schedule 8 Code of Good Practice on Dismissal and the Code of Good Practice on Dismissal Based on Operational Requirements. The COP is effective immediately, requiring employers to ensure that internal codes of conduct and people management policies and procedures have been updated accordingly and personnel adequately trained on the changes.
Dismissals for Misconduct
The COP acknowledges that small employers with limited resources face practical challenges associated with rigid processes. It reiterates that such employers need not adopt overly formal investigations or procedures. This approach allows smaller businesses to address workplace issues without administrative burdens that may hinder revenue-generating activities.
In adjudicating unfair dismissal disputes, a Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner should consider two additional factors relating to substantive fairness:
- the importance of the rule or standard that has been breached; and
- the actual or potential harm caused by the employee's contravention of that rule or standard.
These factors must be considered among the elements of substantive fairness previously set out in item 7 of Schedule 8, which have been incorporated into the COP as is.
Employers continue to bear the burden of proof in such arbitrations. Accordingly, they must be prepared to lead evidence on these additional elements of substantive fairness.
Dismissals for incapacity
The COP introduces four notable inclusions in the context of incapacity:
Poor performance by senior employees | It recognises the heightened accountability inherent in senior positions, stating that explicit warnings about possible dismissal may not always be necessary for senior employees whose knowledge and experience allows them to judge for themselves whether their performance is adequate or where a departure from the standard results in severe consequences. |
Medical incapacity | In cases of substance abuse-related performance concerns, the COP emphasises the importance of exploring interventions short of dismissal, such as counselling or rehabilitation. These measures may prolong already complex and resource intensive processes. |
Incompatibility | The COP recognises the dismissal of employees who cannot integrate within the organisational culture or work harmoniously with colleagues, provided that the employer has made efforts to resolve the incompatibility. |
Other forms of incapacity | Employers are required to explore alternatives to dismissal where other factors prevent an employee from performing their duties. For example, if incapacity stems from imprisonment, this requirement places significant demands on employers, which may be unduly onerous given the operational impact of the employee’s absence. |
Dismissals for participation in unprotected strikes
Procedural fairness
The COP confirms that collective representations made by trade union representatives or worker groups may satisfy procedural fairness requirements for disciplinary action. This codifies a common practice and is a welcome clarification.
Substantive fairness
The code retains existing factors from item 6(1) of Schedule 8, namely the seriousness of the contravention of the LRA and attempts to comply with the LRA, but broadens the assessment of whether a dismissal is substantively fair. The consideration of whether a strike was in response to "unjustified" conduct by the employer has however, been broadened to "whether the strike was in response to unlawful, unfair or unreasonable conduct by the employer". The COP goes further to include factors relevant to the assessment of the seriousness of the unprotected strike and includes:
- the conduct of the parties to the dispute related to the strike and the conduct by any other person that has a bearing on the seriousness of the contravention; and
- the legitimacy of the strikers' demands.
This broader framework may impact the balance between promoting orderly collective bargaining (in terms of section 64 of the LRA) and the risk of increased informal or wildcat strike action as compliance with the procedural requirements for a protected strike may be regarded as less significant.
Dismissals for operational requirements
While dismissals for operational requirements were previously regulated under a separate code of good practice, the COP repeals and replaces the Code of Good Practice on Dismissal based on Operational Requirements. The new guidelines on retrenchments emphasise that dismissal should only be a last resort after all alternatives have been exhausted. While this reflects a commitment to minimising job losses, it also signals a potential departure from jurisprudence that recognises that retrenchments may be pursued for reasons such as enhancing profitability.
The promulgation of the COP presents both opportunities and challenges. While its provisions aim to foster fairness in the workplace, certain measures require careful consideration to avoid unintended consequences. Webber Wentzel’s employment and employee benefits team is well-positioned to assist in interpreting the COP's application and in implementing appropriate workplace processes to mitigate risk.
