''new'' CODE OF DISMISSAL: What does it mean?

… the new Code of Practice: Dismissal (the Code) cannot be viewed as providing employers (in particular small employers) with a carte blanche to dismiss employees at will, with no consequences. The fact remains that South Africa still has one of the most stringent labour law regimes in the world, and each dismissal should be treated as unique and with extreme circumspection.

The Code, which was promulgated on 4 September 2025, has been hailed by some as the dawn of a new era in respect of the ability and flexibility afforded to employers, in particular small employers, to dismiss employees.

However, upon examination of the Code and the development of labour law principles over the last two decades, this does not seem to be the case.

What needs to be kept in mind is that the fairness of any dismissal is adjudged on two principles: procedural- and substantive fairness. Procedural fairness relates to the manner in which an employee is dismissed, while substantive fairness refers to the reason for dismissal.

The so-called flexibility now contained in the Code for small employers (which has not been defined) relates only to procedural aspects of dismissals and not the substantive element thereof. It has, in any event, already been established by the courts that a formalistic, criminalistic approach is not appropriate for misconduct hearings, and the only requirement is that the employee is given an adequate and reasonable opportunity to respond to the allegations of misconduct.

The Code has simply codified or formalised an accepted and established practice.

It is important to note that where employers have codes and contractual terms that prescribe more formal disciplinary procedures, the employer will contractually be bound to comply with these obligations, irrespective of the provisions of this Code.

An employer, regardless of size, must still prove the substantive fairness of any dismissal. This, in essence, requires employers to prove that:  

• a rule was in place;

• the employee was aware of the rule;

• the rule was reasonable and valid;

• the rule was broken;

• the rule was consistently applied;

• the importance of the rule;

• the actual or potential damage caused by the contravention; and

• whether dismissal was an appropriate sanction.

The subjective view of an employer on the fairness of the dismissal is of no consequence. The objective view of a third party, a CCMA commissioner or Labour Court judge, ultimately determines the fairness of the employer’s actions.

Employers can contact their NEASA regional office for any queries in this regard

Headline image credit: Daily Investor

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