Today, 4 September 2025, the Minister of Employment and Labour published the final Code of Good Practice: Dismissal (the Code).
\nThe Code, effective from the date of publication, repeals the previous Schedule 8 Code of Good Practice on Dismissal and the Code of Good Practice Based on Operational Requirements.
\nThe Code provides comprehensive and practical guidance to employers, employees, and trade unions on key aspects of dismissals for misconduct, incapacity, and operational requirements (retrenchments) under the Labour Relations Act.<\/p>\n
Substantively, the final Code mirrors the draft Code released for comment on 22 January 2025 (refer to our guideline here<\/a>.<\/p>\n The Code provides comprehensive and practical guidance to employers, employees, and trade unions on key aspects of dismissals for misconduct, incapacity, and operational requirements (retrenchments) under the Labour Relations Act. The Code is general, allowing for departures in appropriate circumstances, particularly for small businesses.<\/p>\n In brief, the Code:<\/p>\n confirms that dismissals are fair only if based on conduct, capacity or operational requirements and effected through a procedurally fair process; The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to our full terms and conditions<\/a>. Copyright \u00a9 2025 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us cliffedekkerhofmeyr@cdhlegal.com<\/a>.<\/p>\n \tSubscribe<\/p>\n We support our clients\u2019 strategic and operational needs by offering innovative, integrated and high quality thought leadership. To stay up to date on the latest legal developments that may potentially impact your business, subscribe to our alerts, seminar and webinar invitations.<\/p>\n
\nemphasises context-appropriate, increasingly corrective discipline, with dismissal reserved for cases where continued employment is intolerable;
\nallows small businesses flexibility in applying disciplinary and consultation procedures;
\nemphasises that the purpose of a fair procedure is to foster dialogue and reflection, reflecting the view of our courts regarding the informal nature of how disciplinary hearings should be conducted, thus signaling a legislative move towards a decriminalised approach to procedural fairness;
\nconfirms that, as a general rule, employees involved in similar misconduct under similar circumstances should receive comparable sanctions, but further affirms that if the misconduct irreparably damages the employment relationship, dismissal maybe fair, even if inconsistent with prior sanctions;
\nprovides guidance on: probationary periods (including a reasonable duration and a less onerous justification for non-confirmation), incapacity (including incompatibility, ill-health and poor performance) and participation in unprotected strikes (including the issuing of ultimatums and providing sufficient time to comply);
\nprovides that misusing probation as a mechanism to deprive employees of permanent employment status may constitute an unfair dismissal; and
\nintegrates retrenchment guidance, requiring written notice, good faith consultation on alternatives, fair and objective selection criteria, statutory severance, and preferential re-employment<\/p>\n