The Minister of Employment and Labour recently issued a Notice in the Government Gazette providing a Draft of the Code of Good Practice (hereinafter referred to as “the Draft”). The Draft proposes specific amendments to Schedule 8 relating to dismissals, which may lessen stringent procedural expectations, simplify disciplinary procedures, facilitate dispute resolution, and holistically consider a business’s circumstances when determining the fairness of any disciplinary action.
Schedule 8 of the Code of Good Practice has long served as the foundation for practical and fair disciplinary practices in the workplace. Its primary purpose is to facilitate dispute resolution at the Commission for Conciliation, Mediation and Arbitration (CCMA) and Bargaining Councils by providing clear guidelines on procedural and substantive fairness in dismissals. However, small businesses are often challenged with failing to comply with the requirements of the Code due to their lack of resources and expertise in the legal obligations of employers.
The Draft provisions for amendments reaffirm the Code’s role in guiding employers, employees, trade unions, and other stakeholders in complying with their legal obligations regarding dismissals for misconduct, incapacity, and operational requirements. The proposed changes aim to maintain fairness while introducing flexibility, particularly for small businesses, and to provide clear guidelines on incapacity-related dismissals. These amendments will improve the dispute resolution processes in some notable ways, such as consistency in disciplinary sanctions, which are generally encouraged to uphold fairness.
The Draft suggests that minor inconsistencies should not automatically render a dismissal unfair, provided it can be justified. The amendments also refine procedural fairness for misconduct cases, allowing for a genuine dialogue between employee and employer, provided that employers give employees an opportunity to respond in defence of alleged misconduct.
The Draft also suggests that it may be sufficient to allow access to assistance during hearings to meet the fairness standards. Additionally, the Draft reinforces the expectation that employers must provide appropriate guidance, training, and counselling before dismissing an employee for poor performance, ensuring that performance expectations are reasonable and that employees are given adequate time to improve. Beyond performance-related dismissals, the amendments further acknowledge other forms of incapacity, including external circumstances such as imprisonment. Employers are now required to assess all possible alternatives before making a final decision on termination in such cases.
Although the amendments have yet to be implemented, their publication in the Gazette signals imminent change. Employers and stakeholders are encouraged to review the proposed changes and submit written comments by March 21st, 2025. CEO members seeking guidance on the commentary process should contact their nearest branch. The proposed amendments aim to balance employer and employee interests by reinforcing fairness, ensuring reasonable disciplinary procedures, and accommodating the practical realities of small businesses.
Article By Elzet Franck
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)