The Department of Employment and Labour has ushered in a new era for workplace discipline with the gazetting of the amended Code of Good Practice on Dismissal (September 2025) (“the Code”). While the principle that dismissal should always be a last resort has long been embedded in South African labour law, the new Code replaces the previous Code which had been in place for many years and reflects both developments in case law and the realities of modern workplaces.
Employers must now show with greater clarity that dismissal is objectively linked to conduct, capacity or operational requirements and that it is a proportionate response. The emphasis on proportionality to ensure that dismissal is not just justified, indicates a potentially big shift in our dismissal law. At the same time, the new Code strengthens employees’ rights to proper notice, disclosure of evidence, and the keeping of proper records of proceedings, moving away from the more general procedural guidance of the past.
The approach to progressive discipline has also evolved. Where the old Code spoke broadly about dismissal as generally being inappropriate for a first offence, the new Code demands demonstrable efforts to correct and support employees through warnings, counselling, and performance management before dismissal is considered. It also acknowledges, as it must, that dismissal for a first offence may still be appropriate where the misconduct is of such a serious nature that continued employment is intolerable.
The new Code also provides clearer guidance on incapacity cases. Poor performance must now be dealt with through structured interventions such as counselling, training, and guidance, with employees given a reasonable opportunity to improve before dismissal is contemplated. Ill-health is treated with equal importance, with employers required to consider reasonable accommodation and explore alternatives to dismissal. These provisions are far more detailed than the old Code, which only touched on these issues in general terms. Importantly, the Code has extended the scope of incapacity to include other forms of incapacity, such as imprisonment. It also mentions that an employee’s incompatibility as a form of incapacity may only justify dismissal in circumstances where the employee is unable to work in harmony with the employer’s business culture or with fellow employees.
Operational requirements dismissals in the new Code are more explicitly aligned with section 189 of the Labour Relations Act. The new Code emphasises meaningful consultation, the use of objective selection criteria, the exploration of alternatives to retrenchment and the duty to pay fair severance packages. This reflects a clear intention to ensure that retrenchments cannot be justified without rigorous and transparent processes.
Another important addition is the principle of consistency. The new Code warns that employers may face claims of unfair dismissals if similar cases of misconduct are treated differently without justification. This heightens the expectation that disciplinary outcomes are implemented fairly and uniformly across the workplace.
The Code also introduces guidance tailored to smaller businesses. While substantive fairness remains non-negotiable, the new Code recognises that small employers may not have the capacity to run highly formal disciplinary or incapacity enquiries. In these cases, what matters is that the employee is given a fair opportunity to be heard and to respond to the allegations, even if the process is less formal. This flexibility balances the protection of employee rights with the practical realities of running a small business.
Probation has also been given greater attention in the new Code, where it is now made clear that probation must be of reasonable duration, based on the nature of the job and the time required to assess an employee’s suitability. Dismissal during probation may still occur, but only if there is a fair reason supported by evidence and a fair procedure is followed. The practice of repeatedly extending probation to avoid confirming employment is expressly discouraged.
At Cowan-Harper-Madikizela, we believe this is an excellent opportunity for employers to reassess how fairness informs their workplace practices and culture.
We will be hosting a webinar in October 2025 to explore the practical implications of the new Code and to answer your questions. Details will follow soon.
If your business requires amendments to its disciplinary code, or the drafting of a new one to align with the new Code, our team can guide you through the process and ensure that your organisation is fully compliant while remaining practical and effective, so that you can get on with the important business of business.
