Groundbreaking draft dismissal code to transform South Africa's workplace culture

Jonathan Goldberg, Chairman Global Business Solutions

The draft code, which consolidates, and updates provisions previously scattered across Schedule 8 and Section 189 of the Labour Relations Act, introduces several groundbreaking changes that will significantly impact how businesses handle dismissals.

This represents a fundamental shift in approach, moving from rigid procedural requirements to principle-based guidelines that can be adapted to different business circumstances, with an emphasis on practical implementation.

Key changes for employers include:

• Small business relief: For the first time, the code explicitly recognises the practical constraints faced by small businesses, exempting them from overly burdensome procedural requirements and acknowledging their limited HR resources.
• Streamlined procedures: The removal of rigid timeframes (such as the previous 48-hour notice requirement) in favour of "reasonable" standards, offering employers greater procedural flexibility while maintaining fairness.
• Enhanced legal protection: A more structured framework for documentation and decision-making, providing employers stronger defence against unfair dismissal claims through clearer record-keeping requirements and consistency guidelines.
• Progressive discipline framework: A comprehensive approach to workplace discipline that emphasises correction over punishment, with clear guidelines for implementing graduated responses before reaching dismissal.
• Operational requirements: Integration of retrenchment procedures with clearer guidance on consultation requirements and selection criteria, reducing procedural uncertainty in restructuring situations.

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The draft code also introduces a more flexible approach to probation management and performance assessment, with clearer frameworks for evaluation and decision-making. This change particularly benefits businesses dealing with complex performance issues or requiring specialised skills assessment.

The new code strikes a careful balance between protecting employee rights and recognising business operational realities. It provides employers with more practical tools for managing the employment relationship while maintaining fundamental fairness principles.

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For businesses, the implications are significant:

• Reduced risk of procedural challenges in dismissal cases
• More efficient dispute resolution processes
• Better protection through enhanced documentation requirements
• Clearer framework for consistent decision-making
• Greater flexibility in adapting procedures to business circumstances

The draft code is currently open for public comment, with implementation expected to significantly improve employment relationship management while reducing legal uncertainty for businesses. Submissions can be emailed to az.vog.ruobal@eynahltagK.onapoK or az.vog.ruobal@adnubaM.inakulH by 22 March 2025.

View the Government Gazette No. 51947, 21 January 2025 notice here.