South Africa’s employment law landscape has officially shifted. On 4 September 2025, the Minister of Employment and Labour published the final Code of Good Practice: Dismissal, repealing the long-standing Schedule 8 Code of Good Practice on Dismissal and the Code of Good Practice Based on Operational Requirements. The new Code is effective immediately. While the final version closely resembles the Draft Code published in January 2025, it confirms a fundamental policy shift toward a more principle-based, flexible, and context-sensitive approach to dismissal, with dialogue, proportionality, and fairness at its core.
Key Themes and Changes
- A Shift in Approach
The new Code moves away from rigid disciplinary formalism. Instead of mirroring criminal procedure, it promotes reflective, genuine engagement before dismissal decisions are made. Fair procedure doesn’t require a formal hearing, but a fair opportunity to respond and to be heard.
- Support for Small Businesses
Procedural allowances are made for smaller employers, recognising limited resources. However, even informal processes must include notice, opportunity for representation, and meaningful engagement.
- Updated Standards for Misconduct
The Code clarifies factors that commissioners and employers should weigh when assessing the fairness of dismissal for misconduct. These include the seriousness of the breach, harm caused, consistency in discipline, and whether continued employment is intolerable.
- Probation and Incapacity Clarified
A less onerous process applies to probationary employees, but misuse of probation (to avoid permanent employment) may constitute unfair dismissal. Incapacity dismissals are expanded to cover poor performance, incompatibility, ill-health, and even imprisonment. For poor performance, employers must show that the required standard was reasonable and attainable.
- Operational Requirements Now Fully Integrated
Dismissals based on operational requirements (retrenchments) are now included in the Code. The guidance covers written invitation to consult (with a Section 189(3) example); good faith consultations; objective selection criteria, severance pay; and preferential re-employment practices.
Implications for Employers and HR Practitioners
The new Code does not drastically alter the legal grounds for dismissal, as conduct, capacity, and operational requirements remain central. However, it tightens expectations, offers clearer guidance, and sets a modernised standard for compliance.
Employers are encouraged to:
- Review internal policies to align with the new Code;
- Ensure consistency and documentation in disciplinary processes;
- Consider external chairpersons in more complex matters;
- Educate managers and HR teams on the principle-based application of fairness.
It is also important to note that employers who have adopted internal disciplinary procedures more rigorous than those in the Code remain bound by them, unless these are formally revised to reflect the updated approach
What This Means Going Forward
The 2025 Code reflects a contemporary and balanced approach to dismissal, protecting employee rights while providing employers with greater procedural flexibility. For all employers, HR professionals, and workplace representatives, now is the time to review policies, update procedures, and train decision-makers in line with the new standards.
The official Government Gazette can be viewed here – https://www.gpwonline.co.za/Government-Gazettes/
We encourage employers, IR/HR professionals, and legal practitioners to engage with these developments and share their insights.
