South Africa’s Minister of Employment and Labour, Nomakhosazana Meth, has officially published a new Code of Practice on employee dismissals.

The code took effect on 4 September, replacing both the long-standing Schedule 8 Code of Good Practice on Dismissal and the Code of Good Practice on Operational Requirements.

According to legal experts Nadeem Mahomed and Sashin Naidoo from Cliffe Dekker Hofmeyr, the updated framework provides clear, practical guidance for employers, employees, and trade unions. It covers dismissals relating to misconduct, incapacity, and operational requirements such as retrenchments, under the Labour Relations Act.

The finalised version closely follows the draft released for public input in January 2025. While broad in scope, it leaves room for flexibility, particularly for small businesses, which may adapt procedures to their scale.

At its core, the code reaffirms that dismissals must follow a fair and context-sensitive process, tied to conduct, performance capacity, or operational necessity. Termination should only occur when the continuation of employment becomes untenable.

Importantly, the new code recognises the need for small businesses to take a more adaptable approach to disciplinary and consultation practices. It also stresses that fair processes are intended to encourage dialogue and self-reflection, aligning with the courts’ recognition of the relatively informal nature of disciplinary hearings. The changes reflect a broader legislative shift away from a rigid, punitive approach to procedural fairness.

Consistency remains important: employees involved in similar forms of misconduct should generally face comparable consequences. However, where misconduct has caused irreparable harm to the employment relationship, dismissal may still be justified, even if it differs from sanctions imposed in past cases.

The guidelines also clarify issues around probation, including the need for a reasonable timeframe and a lower threshold for non-confirmation. Employers are cautioned that using probation to deny staff permanent employment could amount to unfair dismissal.

Further provisions address incapacity arising from incompatibility, ill-health, or poor performance, as well as rules for handling unprotected strikes. These include issuing clear ultimatums and providing sufficient time for workers to comply.

On retrenchments, the code requires employers to provide written notice, engage in meaningful consultation over alternatives, apply fair selection criteria, pay statutory severance packages, and consider affected workers first for future vacancies.

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