By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
The new Code of Good Practice on Dismissal that was gazetted on 4 September 2025 helps to clarify some thorny issues relating to dismissal for misconduct, poor performance, probation, incapacity and retrenchments.
The introductory section of the code states that employers and employees should treat each other with respect. It prioritises employment justice, satisfactory conduct and work performance as well as efficient operation of the business.
Employers may, in appropriate circumstances, depart from aspects of the code. Smaller employers in particular, are given more leeway as regards implementation of required procedures.
The code states that certain departures from its norms may be justified. However, employers are encouraged to avoid departure from the code where at all possible because the code reminds us that it is the employer that has the full onus of proof of fairness. This is an immovable and unignorable requirement. And departing from the code renders very difficult the satisfaction of this heavy onus.
In addition, the code, in some places, refers to its contents as a ‘guideline’. However, in other places, it refers to ‘these rules’. This makes it unclear how hard and fast the code’s provisions are. And it suggests that employers should consider erring on the side of caution.
The code newly provides clarification that employers may use suspensions as part of their graduated disciplinary measures and that collective agreements take precedence over the code’s provisions. Also, in assessing whether dismissal is appropriate, arbiters should consider not only actual damage caused by misconduct, but also the potential damage.
As regards the substantive fairness of dismissals for unlawful industrial action this will depend on:
- The seriousness of the effect of the strike
- Attempts made to comply with the Act
- Whether the strike was in response to an unlawful, unreasonable or unfair act of the employer
- the actions of the parties and other actors involved
- the legitimacy of the strikers’ demands
- the duration and timing of the strike.
If striking employees reject the employer’s ultimatum the employer may dismiss them, but only after considering the employees’ representations as to why they should not be dismissed.
The purpose of probation is for the employer to evaluate the employee’s performance or suitability for the job. This appears to imply that “suitability” may not be confined purely to the probationer’s standard of work performance.
The code newly provides that, where employees are incapacitated due to substance abuse, treatment and rehabilitation may be appropriate. Also, imprisonment and incompatibility may constitute incapacity but will not merit dismissal in every case.
While the code provides the above clarity employers need to ensure that they have clear policies and processes that reflect the code’s requirements and that their managers know how to implement these.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
