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Article 1/2026

LabourEdge

The Code of Good Practice on Dismissal (the Code) was promulgated in GG 53294 of 4 September 2025. The Code repealed Schedule 8 Code of Good Practice Dismissal and the Code of Good Practice Based on Operational Requirements (1999). The Code became effective on 4 September 2025. What are some of the important principles underpinning the purpose of the Code? What is the approach to be adopted when interpreting the Code? What are some of the important considerations to be taken into account when determining how to deal with misconduct in terms of the Code?
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Purpose of the Code

The Code provides guidance to employers, employees, trade unions and persons applying the Code. This guidance is focussed on the legal obligations of the above role players in terms of the LRA relating to dismissals for misconduct, incapacity and operational requirements.

Interpretation

The Code is intentionally general, seeing that each case is unique. Departure(s) from the norms established by the Code may be justified in proper circumstances.

It is important to appreciate that item 2 of the Code makes it clear that the Code does not alter rights and obligations established under collective agreements.

Small businesses escape the obligation to comply with the Code in such circumstances where it is not practical or feasible.

Misconduct

Purpose of disciplinary processes

The purpose of implementing discipline is to correct an employee’s behaviour through graduated disciplinary measures (such as counselling, warnings, etc).

In order for the role players at the workplace to comply with the above purpose, it is of vital importance that employees know and understand what standards are required from them and that this standard is contained in a specific rule or workplace standard – more about this hereunder.

An employer may depart from these workplace rules or standards if there is justification for doing so.

Deciding a fair sanction

The guideline contained in item 7(1), namely, that an employee may be dismissed for serious misconduct if the misconduct renders the continuation of the employment relationship intolerable, is repeated in item 9.

Any person deciding whether a sanction is fair (the repealed Schedule 8 referred, in this regard, to the question whether the dismissal is unfair) should consider:

  • whether the employee contravened a rule/standard applicable to the workplace
  • if so:
    • whether the rule/standard is valid and reasonable (no longer are these two requirements used in the alternative)
    • whether the employee was aware, or could reasonably be expected to have been award, of the rule/standard
  • the following two new requirements have been introduced, namely:
    • the importance of the rule/standard
    • the actual/potential harm/damage caused by the contravention – this requirement is unpacked when we deal with item 9 of the Code
  • whether the rule/standard has been consistently applied by the employer
  • whether dismissal is the appropriate sanction

The sanction of dismissal

Item 9 of the Code corresponds largely with item 3(5) of the repealed Schedule 8.

The following factors are to be taken into account to determine whether there is compliance with the requirements of item 7 and whether the continued employment relationship has been made intolerable:

  • the nature and seriousness of the misconduct and its effect on the business of the employer – what is required is for the employer to exhibit a sensible operational response to managing the risk associated with the conduct of the employee (e g G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others (2017) 38 ILJ 881 (LAC), Brauns and Others v Wilkes NO and Others (2024) 35 SALLR 439 (LAC); Worldwide Staffing (Pty) Ltd v Metal Engineering Industries Bargaining Council and Others (2024) 35 SALLR 458 (LC)
  • the following new requirements have been introduced:
    • whether progressive discipline might prevent the recurrence of the misconduct
    • an acknowledgment of wrongdoing by the employee and a willingness to comply
    • the employee’s circumstances, e g length of service, disciplinary record and the effect of dismissal on the employee

Consistency

  • The well-established requirements pertaining to consistency have been maintained in item 10 of the Code

Fair procedure

  • In the era before the Code, the majority of role players, contrary to case law development (so initiated in Avril Elizabeth Home for the Handicapped v CCMA (2006) 10 SALLR 118 (LC)), persisted with an approach that entailed, amongst others, the following:
    • the putting of charges
    • a request to the employee to plead
    • introducing evidence by means of processes akin to litigation, such as evidence-in-chief, cross-examination and re-examination, etc
  • Item 11(1) now clearly establishes a departure from such criminal justice model to a decriminalised, simplified and speedy approach. A fair procedure now entails a genuine dialogue and an opportunity for reflection before any decision is taken. This is in line with the anticipated new s188(3) of the LRA that, if promulgated, would read as follows: ‘Subject to an applicable collective agreement, a fair procedure is one in which the employee has been given an adequate and reasonable opportunity to respond to the reason for the dismissal.’
  • See, further, in the above regard:
    • Code: item 11(2) to item 11(7)
    • Mulaudzi v Property Regulatory Authority (2023) 34 SALLR 77 (LC)
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?