New Code of Good Practice: Dismissal Released September 2025
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1. Immediate Effects
- The new Code is effective immediately with no grace period as of 04 September 2025. It serves as a single reference point for all dismissals, and Schedule 8 as well as the 1999 Code on Operational Requirements have been repealed.
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2. Compliance Requirements
- Bizconsult is available to assist with policy reviews and training on new provisions, particularly for small businesses and retrenchment procedures. Adaptation of templates is recommended by Annexure A in the Code.
- While some rules have been relaxed, strict application of the new Code may run the risk of being contested until new standards are set by the CCMA or Courts.
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3. Most Notable Changes
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3.1 Integration of Operational Requirements (Retrenchments)
- • The original Schedule 8 had no coverage of retrenchments.
- • New "Part G" includes comprehensive procedures (Sections 22-24) and Annexure A provides a standardized Section 189(3) notice template.
- • New obligations include detailed consultation timeframes and preferential re-employment.
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3.2 Small Business Provisions
- The new Code introduces flexibility in "Part A, Section 3," recognizing that small employers lack HR specialized skills and cannot engage in time-consuming processes.
- Caution: There is no clear definition of a small business. Employers must prove they could not observe standard procedures without suffering operationally.
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3.3 Enhanced Sanction Assessment
- Section 8 expands fair sanction factors from 4 to 6, adding the importance of the rule in the workplace and the actual or potential harm caused.
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4. Expanded Procedural Flexibility
- Misconduct Management: Section 6(7) allows for informal procedures if justified by operational reasons.
- Language Rights: Section 11(4)(d) requires providing opportunities for employees to converse in comfortable languages where reasonably possible.
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5. Probation and Incapacity Extensions
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5.1 Probation (Section 15 & 18)
- The scope is expanded from just "performance" to include "suitability for employment". Arbitrators should accept less compelling reasons for probationary dismissals.
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5.2 Forms of Incapacity (Section 21)
- Beyond ill health and injury, the new Code recognizes imprisonment, incompatibility, and substance abuse as forms of incapacity.
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5.3 Senior Employee Standards (Section 20)
- Senior employees with high professional skill may not require warnings before dismissal consideration, though they must still be given an opportunity to respond.
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6. Strike Action and Consistency
- Strike Assessment: Section 12(2) adds four factors: conduct of parties, legitimacy of demands, duration/timing, and harm caused.
- Consistency: Section 10 clarifying that inconsistency does not automatically render a dismissal unfair if continued employment is intolerable.
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7. Conclusion
- The new Code aligns with the LRA's objective for expeditious dispute resolution while formalizing established practices. For further clarity or assistance with these scenarios, please contact a Bizconsult consultant.