On 21 January 2025 the Minister of Employment and Labour published the draft Code of Good Practice on Dismissal (“the Draft Code”) and invited public comment.
The purpose of the Draft Code is to provide guidance on complying with the obligations of the Labour Relations Act, 1995 in relation to dismissals for misconduct, incapacity and operational requirements. Certain of the noteworthy, proposed amendments include:
- The acknowledgement that “small business” cannot be reasonably expected to comply with onerous and lengthy pre-dismissal procedures. This affords enhanced flexibility and welcome relief to small businesses. Notably, there is no definition as to what constitutes a “small business”.
- It is explicitly recorded that a formal disciplinary process need not be instituted in all instances of misconduct.
- Whilst consistency is a factor to assess the fairness of a dismissal, it does not follow that inconsistency renders a dismissal unfair.
- Incompatibility, being an employee’s inability to work in harmony within the business, is recognised as a form of incapacity which may justify dismissal.
- In relation to retrenchments, the Draft Code prescribes the form of the notice which must be issued by employers (including small businesses) to the affected employees. The Draft Code also sets out clearer guidance on consultation requirements and the issue of selection criteria.
Public comments are open for 60 days from 21 January 2025. Interested stakeholders are encouraged to submit written comment on the Draft Code.
For more information, please contact Melanie Hart at melanie@bv-inc.co.za.
Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.