A new draft Code of Good Practice on Dismissals (draft COP) seeks to introduce notable changes to Schedule 8 of the Labour Relations Act, 1995 (LRA), which provides guidance on the fairness of dismissals. The intended changes affect small employers, dismissals linked to poor performance, misconduct, participation in unprotected strikes, and operational requirements.
The draft COP was published on 21 January 2025 and members of the public have been invited to submit their written comments by 24 March 2025.
Dismissals for Misconduct
The draft COP recognises that rigid processes are often impractical for small employers with limited resources. It reiterates that such employers need not adopt overly formal investigations or procedures. This approach allows smaller businesses to address workplace issues without administrative burdens that may hinder revenue generating activities.
The draft COP proposes that a Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner arbitrating an unfair dismissal dispute should, in addition to the existing elements of substantive fairness set out in item 7 of Schedule 8, consider:
- the importance of the rule or standard that has been breached; and
- the actual or potential harm caused by the employee's contravention of that rule or standard.
As employers bear the burden of proof in such arbitrations, they must prove these additional elements of substantive fairness, it will require employers to prove these additional elements of substantive fairness.
Dismissals for Incapacity
The draft COP introduces four notable inclusions in the context of incapacity:
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poor performance by senior employees | The draft COP acknowledges the heightened accountability inherent in senior positions, stating that explicit warnings about possible dismissal may not always be necessary for senior employees whose performance does not improve. |
medical incapacity | Additional considerations are proposed for substance abuse-related performance concerns, emphasising the importance of exploring interventions short of dismissal, such as counselling or rehabilitation. These measures may prolong already complex and resource intensive processes. |
incompatibility | The draft COP recognises an employee’s incompatibility, ie an inability to work in harmony with the organisation’s culture or colleagues, may justify dismissal. |
other forms of incapacity | The draft COP requires employers to explore alternatives to dismissal where other factors prevent an employee from performing their duties. For example, if incapacity stems from imprisonment, this requirement places significant demands on employers, which may be unduly onerous given the operational impact of the employee’s absence.
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Dismissals for participation in unprotected strikes
Procedural fairness
The draft COP provides that collective representations may satisfy procedural fairness requirements for disciplinary action. This codifies a common practice and is a welcome clarification.
Substantive fairness
The proposed framework includes new factors to take into account when considering the substantive fairness of a dismissal for participation in an unprotected strike. While the current considerations in item 6(1) of Schedule 8 remain, namely the seriousness of the contravention of the LRA and attempts to comply with the LRA. The consideration of whether a strike was in response to "unjustified" conduct by the employer, has however been broadened to "whether the strike was in response to unlawful, unfair or unreasonable conduct by the employer".
The draft COP goes further to include factors relevant to the assessment of the seriousness of the unprotected strike and includes:
- the conduct of the parties to the dispute related to the strike and the conduct by any other person that has a bearing on the seriousness of the contravention; and
- the legitimacy of the strikers' demands.
One of the purposes of the LRA is to promote orderly collective bargaining, which is achieved through the procedural requirements for protected strikes set out in Section 64. By introducing broader grounds for justifying unprotected strikes, these draft provisions risk increasing the likelihood of wildcat strikes, as compliance with the procedural requirements for a protected strike may be regarded as less significant.
Dismissals for operational requirements
While dismissals for operational requirements are regulated under a separate code, the draft COP proposes new guidelines on retrenchments, emphasising that dismissal should only be a last resort after all alternatives have been exhausted. While this reflects a commitment to minimising job losses, it also signals a potential departure from jurisprudence that recognises that retrenchments may be pursued for reasons such as enhancing profitability.
The publication of the draft COP presents both opportunities and challenges. While its provisions aim to foster fairness in the workplace, certain measures require careful consideration to avoid unintended consequences.
Webber Wentzel's Employment & Employee Benefits team is well-positioned to assist clients in preparing and submitting detailed comments on the draft COP, ensuring a meaningful consultation process in shaping the South African labour law landscape.
