The new Draft Code of Good Practice on Dismissal was published on 21 January 2025. The media have quickly reacted with several articles featuring eye-catching headlines:
- “Groundbreaking Draft Dismissal Code to Transform South Africa’s Workplace Culture”
- “Major Overhaul of Dismissal Code Set to Streamline Employment Procedures and Reduce Legal Risk for Businesses”
Risk-averse employers, especially small business owners, should be wary of the hype surrounding the draft Code.
Reaffirming Established Labour Law Principles
The draft Code largely rewords the existing code into more accessible and readable language, but it also reaffirms concepts that have already been established through case law. These include:
- Two ‘new’ forms of incapacity, namely general incapacity and incompatibility.
- Two ‘new’ guidelines to consider when deciding on an appropriate sanction, namely the importance of the rule and the actual or potential harm of the employee’s conduct.
- New circumstances to consider when dealing with substantive fairness in unprotected strike situations, namely:
- The seriousness of the contravention of the Act.
- The attempts made to comply with the Act.
- Whether the strike was in response to unlawful, unfair, or unreasonable conduct by the employer.
None of these concepts are new and they have been in effect for several years.
Why Proper Process Still Matters
The draft Code does not allow small business owners to dismiss employees without a fair procedure or fair reason. It also does not limit or change the rights that employees of small businesses have to refer dismissal disputes to the CCMA. The CCMA has recently been receiving more than 100,000 dismissal cases each year. There is no reason to believe this new draft Code will change this trend.
When small businesses are inevitably faced with unfair dismissal cases at the CCMA, their best defence remains to have readily accessible proof that they dismissed the employee for a fair reason after following a fair process.
If you need expert guidance to navigate the complexities of employment law, we’re here to help. Don’t let uncertainty or misinformation leave your business exposed.
Let SEESA help you protect your business and ensure compliance with confidence.