The Department of Employment and Labour issued a draft update to the Code of Good Practice on Dismissal under the Labour Relations Act 66 1995. The Draft Code appears to build on Schedule 8 to the LRA and certain aspects of the LRA itself. It aims to provide clearer and more accessible guidelines for fair and lawful dismissals related to misconduct, incapacity, and operational restructuring. While it largely aligns with the existing Code, it introduces a more user-friendly approach to navigating the Labour Relations Act (LRA).
What’s New?
1. Small Businesses
A significant addition to the Draft Code is its direct reference to small businesses, recognising that simplified disciplinary and dismissal procedures may be more practical for these employers. While this principle already exists within labour law, its explicit inclusion underscores the importance of flexibility based on the size and functionality of a business.
2. Sanction of Dismissal
Both codes outline factors to consider when determining dismissal for misconduct. The Draft Code expands on these by introducing two additional considerations:
The impact of the misconduct on the business.
Whether the employee acknowledges the misconduct and shows a willingness to comply with workplace rules.
3. Probation and Performance Dismissals
The Draft Code clarifies that probation serves two purposes: assessing both performance and suitability of a new hire. Previously, the focus was solely on performance.
4. Poor Work Performance
Both codes define criteria for dismissals based on poor work performance. The Draft Code introduces a key factor: whether the required performance standard was reasonably achievable. It also specifies that, in certain cases, employers may not need to issue a warning before dismissing an underperforming employee. This exception applies particularly to:
Managers and senior employees with the expertise to assess their own performance.
Professionals with high levels of specialised skill.
5. Incapacity
While the existing Code and Draft Code remain largely similar in addressing incapacity due to ill health or injury, the Draft Code expands the definition to include other factors, such as imprisonment. It also recognises incompatibility—where an employee's inability to integrate with workplace culture or colleagues—can be grounds for dismissal due to incapacity.
6. Operational Requirements
Previously, dismissals based on operational requirements were covered only in the LRA and the Code of Good Practice on Dismissal for Operational Requirements. The Draft Code now incorporates guidance on:
The nature of operational requirements.
What constitutes a fair reason and fair process for such dismissals.
A template for written notices under section 189(3) of the LRA, aligning with legal requirements.
Invitation for Public Comment
Stakeholders are invited to submit comments on the Draft Code within 60 days of its publication, with the deadline set for 22 March 2025. Submissions can be made via email or post, with further details available in the Draft Code - see below
The proposed changes aim to improve clarity and fairness in workplace dismissals, ensuring compliance while accommodating the practical realities of different business environments.
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