# summary

- Link: https://dearsouthafrica.co.za/code-of-good-practice/summary/
- Published: 2025-01-29T12:55:56+02:00
- Author: dearSA

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[Part B – Dismissal](https://dearsouthafrica.co.za/code-of-good-practice/summary/#1738150189952-44103674-e29d)

**Dismissal**.

 1.  a. The most common form of dismissal is when the employer terminates the employee’s
        employment with or without notice.
     b. There are a number of other kinds of dismissal listed in section 186 (1) of the
        Act which are not dealt with in this Code.

[Part C – Fair Dismissal](https://dearsouthafrica.co.za/code-of-good-practice/summary/#1738150189975-5d0623dc-47dc)

**Fairness.**

 1.  a. A dismissal is fair if it is for a fair reason and in accordance with a fair procedure.
     b. The Act lists three grounds on which a dismissal may be fair. These are: the conduct
        of the employee, the capacity of the employee, and the employer’s operational 
        requirements.
     c. The Act provides that a dismissal is automatically unfair if the reason for the
        dismissal infringes the rights of employees and trade unions or if the reason 
        is one of those listed in section 187. These reasons include participation in 
        a protected strike, pregnancy or acts of discrimination.
     d. In cases where the dismissal is not automatically unfair, the employer must show
        that the dismissal was for a fair reason and in accordance with a fair procedure.

[Part D – Misconduct](https://dearsouthafrica.co.za/code-of-good-practice/summary/#1738150854013-bb98f5fb-7d09)

**Disciplinary measures.**

 1.  a. The purpose of discipline is for employees to know and understand what standards
        are required of them, and to guide their behaviour.
     b. The purpose of implementing disciplinary processes is corrective. They are primarily
        a means to correct an employee’s behaviour through graduated disciplinary measures.
     c. The form and content of disciplinary rules and procedures may vary according to
        the size and nature of the employer’s business. Smaller employers may adopt a 
        less formal approach to discipline.
     d. Disciplinary rules and procedures should be clear and made available toemployees
        in a manner that is easily understood.
     e. It is preferable for employers, especially medium and larger employers, to adopt
        written disciplinary rules and procedures to establish the standard of conduct
        required of their employees and to create certainty and consistency in the application
        of discipline.
     f. Formal procedures do not have to be invoked every time a rule is broken, or a 
        standard is not met. Informal advice and correction is often the best and most
        effective way for an employer to deal with minor violations of work discipline.
        Repeated misconduct will warrant warnings, which themselves may be graded according
        to degrees of severity. More serious infringements or repeated misconduct may 
        call for a final warning or dismissal.
     g. The employer may depart from these rules and procedures if there is a justification
        for doing so.

**Fair reason for misconduct dismissal.**

 1.  a. An employee may be dismissed for serious misconduct if the misconduct renders 
        the continuation of the employment relationship intolerable.
     b. Subject to the rule that each case should be judged on its merits, serious misconduct
        may be a single instance of misconduct or repeated misconduct where graduated 
        disciplinary measures have been implemented.

**Guidelines for deciding a fair sanction.
 
Any person who is deciding whether 
a sanction for misconduct is fair should consider;

 1.  a. whether the employee contravened a rule or standard regulating conduct in, or 
        of relevance to, the workplace;
     b. if a rule or standard was contravened
     c.  a. whether the rule was a valid and reasonable rule or standard;
         b. whether the employee was aware, or could reasonably be expected to have been 
            aware, of the rule or standard;
         c. the importance of the rule or standard in the workplace;
         d. the actual or potential harm or damage caused by the employee’s contravention
            of the rule or standard;
         e. whether the rule or standard has been consistently applied by the employer; and
         f. whether dismissal is an appropriate sanction for the contravention of the rule
            or standard.

**The sanction of dismissal
 
Generally, dismissal is only an appropriate sanction
if a continued employment relationship is intolerable. Factors to consider when 
determining this include:

 1.  a. the nature and requirements of the job;
     b. the nature and seriousness of the misconduct and its effect on the business;
     c. whether progressive discipline might prevent a recurrence of the misconduct;
     d. any acknowledgement of wrongdoing by the employee and willingness to comply with
        the employer’s rules and standards; and
     e. the employee’s circumstances (including length of service, disciplinary record
        and the effect of dismissal on the employee).

**Consistency**
 As a general rule, the employer should apply the sanction of dismissal
in the same way in which it has been applied to other employees in the past4, and
consistently as between two or more employees who participate in the misconduct 
under consideration.

**Fair procedure.**

 1.  a. The purpose of a fair procedure is to ensure a genuine dialogue and an opportunity
        for reflection before any decision is taken.
     b. A fair procedure is one in which an employee has been given an adequate and reasonable
        opportunity to respond to the allegation of misconduct.
     c. An investigation or enquiry does not have to be formal. Its nature should be appropriate
        to the circumstances, including the type of allegation and the nature and size
        of the employer.
     d. Usually, before a decision is taken to dismiss, the employee should be;
     e.  a. notified of the allegations of misconduct, preferably in writing;
         b. given an opportunity within a reasonable period of time to prepare and make representations
            on both the misconduct allegations and the appropriate sanction;
         c. allowed the assistance of a fellow employee or trade union representative;
         d. where reasonably possible, provided with the opportunity to converse in a language
            that the employee is comfortable with.
     f. Allegations of misconduct should be made available or explained in sufficient 
        detail to allow the employee to understand them.
     g. In exceptional circumstances, if the employer cannot reasonably be expected to
        comply with these guidelines, the employer may dispense with some or all of them.
        It should, however, be recognised that the employer may be obliged to justify 
        non-compliance if the employee refers a dispute about the procedural unfairness
        of the dismissal.
     h. Discipline against a trade union representative or an employee who is an office-
        bearer or official of a trade union should not be instituted without first informing
        and consulting the trade union.

**Dismissals and industrial action.**

 1.  a. Participation in a strike that does not comply with the provisions of chapter 
        IV is misconduct. However, like any other act of misconduct, it does not always
        deserve dismissal. The substantive fairness of dismissal in these circumstances
        must be determined in the light of the facts of the case,
         including
     b.  a. the seriousness of the contravention of this Act;
         b. attempts made to comply with the Act; and whether the strike was in response 
            to unlawful, unfair or unreasonable conduct by the employer.
     c. Factors relevant to assessing the seriousness of the contravention include;
     d.  a. 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;
         b. the legitimacy of the strikers’ demands;
         c. the duration and timing of the strike; and
         d. the harm caused by the strike.
     e. The process before dismissal should include the following;
     f.  a. The employer should, at the earliest opportunity, contact a trade union official
            to inform the trade union about the strike so as to afford the trade union an
            opportunity to consult with the striking employees.
         b. The employer should consider representations by the official, and discuss the
            course of action it intends to adopt with the trade union.
             (c) If there is no
            trade union involved, the employer should seek to engage with leaders or representatives
            of the striking employees.
         c. The employer should issue an ultimatum in clear and unambiguous terms that should
            state what is required of the employees and what sanction will be imposed if 
            they do not comply with the ultimatum.
         d. The employees should be allowed sufficient time to reflect on the ultimatum and
            respond to it, either by complying with it or rejecting it.
         e. If an employer issues an ultimatum to employees engaged in an unprotected strike,
            it may not be fair to dismiss employees for participation in that strike who 
            obey the ultimatum and return to work within the stipulated period.
         f. If participating employees reject an ultimatum, the employer may dismiss the 
            employees after considering the conduct and any representations of the employees
            in accordance with the provisions of this Code.
         g. In cases of collective misconduct, the employer may, depending on the circumstances,
            satisfy the requirements of procedural fairness by calling for collective representations.
         h. If the employer cannot reasonably be expected to extend any of these steps to
            the employees in question, the employer may dispense with them.

**Disciplinary records.**
 Employers should keep records for each employee specifying
the nature of any disciplinary transgressions, the actions taken by the employer
and the reasons for the actions.

[Part E – Probation](https://dearsouthafrica.co.za/code-of-good-practice/summary/#1738151172108-10076802-4d00)

**Requirement to serve probation.**
 An employer may require a newly hired employee
to serve a period of probation before the employee’s appointment is confirmed.

**Purpose.**

 1.  a. The purpose of probation is to give the employer an opportunity to evaluate the
        employee’s performance and suitability for employment
         before confirming the appointment.
     b. Probation should not be used for purposes not contemplated by this Code, to deprive
        employees of the status of permanent employment. For example, a practice of dismissing
        employees at the end of their probation periods for reasons unrelated to their
        performance or suitability for employment and replacing them with newly hired 
        employees is inconsistent with the purpose of probation and may constitute an 
        unfair dismissal.

**Period of Probation.**
 The period of probation should be determined in advance
and be of a reasonable duration. The length of the probationary period should be
determined with reference to the nature of the job and the time it takes to determine
the employee’s suitability for continued employment.

**Reasonable guidance.**
 During probation an employer should give an employee reasonable
guidance, appropriate to the nature and size of the employer and the job, which 
may include instruction, training or counselling, in order to allow the employee
an opportunity to render a satisfactory service.

**Decision not to confirm appointment.**

 1.  a. An employer may only decide to dismiss an employee or extend the probationary 
        period after the employer has given the employee the opportunity to make representations
        and the employer has considered any representations made.
     b. Any person deciding about the fairness of a dismissal of an employee related to
        the employee’s conduct or capacity, including poor work performance, during or
        on expiry of the probationary period, ought to accept, taking into account the
        purpose of probation, reasons for dismissal that may be less compelling than would
        be the case in dismissals effected after the completion of the probationary period.

[Part F – Incapacity](https://dearsouthafrica.co.za/code-of-good-practice/summary/#1738151231288-dfdfde22-26f0)

**Unsatisfactory performance after probation.**

 1.  a. After probation, an employee should not be dismissed for unsatisfactory performance
        unless;
     b.  a. the employer has given the employee appropriate evaluation, instruction, training,
            guidance or counselling; and
         b. after a reasonable period of time for improvement, the employee continues to 
            perform unsatisfactorily.
     c. Before dismissing, the employer should give the employee an opportunity to respond
        to the allegations of unsatisfactory performance.

**Guidelines in cases of dismissal for poor work performance.**

 1.  a. Any person determining whether a dismissal for poor work performance is unfair
        should consider;
     b.  a. whether the employee failed to meet a performance standard; and
         b.  if the employee did not meet a required performance standard, whether-
         c.  a. the employee was aware, or could reasonably be expected to have been aware, 
                of the required performance standard;
             b. the employee was given a fair opportunity to meet the required performance standard;
             c. the required performance standard was reasonably achievable; and
             d. dismissal was an appropriate sanction for not meeting the required performance
                standard.
     c. Depending on the circumstances, an employer may not be required to warn an employee
        that if their performance does not improve they might be dismissed. This may be
        the case for managers and senior employees whose knowledge and experience enables
        them to judge whether their performance is adequate and employees with a high 
        degree of professional skill where a departure from that high standard would have
        severe consequences justifying dismissal.

**Incapacity: Ill health, injury and other forms of incapacity**

 1.  a. Incapacity on the grounds of physical or mental ill health or injury may be temporary
        or permanent. If an employee is temporarily unable to work in these circumstances,
        the employer should investigate the extent of the incapacity or the injury. If
        the employee is likely to be absent for a time that is unreasonably long in the
        circumstances, the employer should investigate all the possible alternatives short
        of dismissal. When alternatives are considered, relevant factors include the nature
        of the job, the period of absence, the seriousness of the illness or injury and
        the possibility of securing a temporary replacement for the ill or injured employee.
     b. In cases of permanent incapacity, the employer should ascertain the possibility
        of securing alternative employment, or adapting the duties or work circumstances
        of the employee to accommodate the employee’s disability.
     c. In the process of the investigation referred to in sub-item (1), the employee 
        should be allowed the opportunity to state a case in response and to be assisted
        by a trade union representative or fellow employee.
     d. The degree and cause of incapacity is relevant to the fairness of a dismissal 
        on this ground. In the case of certain kinds of incapacity, for example alcoholism
        or drug abuse, counselling and rehabilitation may be appropriate steps for an 
        employer to consider.
     e. Particular consideration should be given to employees who are injured at work 
        or who are incapacitated by a work-related illness. In these circumstances, the
        duty on the employer to accommodate the incapacity of the employee is more onerous.
     f. Incapacity may be unrelated to ill health or injury, and may arise due to other
        factors preventing the employee from performing the applicable duties of the job,
        including imprisonment. Such incapacity may be temporary or permanent. The employer
        should assess the extent of the incapacity, and investigate all possible alternatives
        short of dismissal.
     g. An employee’s incompatibility, as manifested by an inability to work in harmony
        with an employer’s business culture or with fellow employees, can constitute a
        form of incapacity which may justify dismissal.

[Part G – Operational Requirements](https://dearsouthafrica.co.za/code-of-good-practice/summary/#1738151253752-ee477515-a646)

**The nature of operational requirements.**

 1.  a. The Act defines a dismissal based on an employer’s operational requirements as
        one that is based on the “economic, technological, structural or similar needs
        of the employer”. This type of dismissal is commonly called a retrenchment.
     b. It is difficult to define all the circumstances that might legitimately form the
        basis for a retrenchment. As a general rule, economic reasons are those that relate
        to the financial state of the employer. Technological reasons refer to the introduction
        of new technology, which affects work relationships either by making existing 
        jobs redundant or by requiring employees to adapt to the new technology, or a 
        consequential restructuring of the workplace. Structural reasons relate to the
        redundancy of posts resulting from a restructuring of the employer’s business.
     c. Dismissals for operational requirements have been categorised as “no fault” dismissals.
        In other words, it is not the employee who is responsible for the termination 
        of employment. Because retrenchment is a “no fault” dismissal and because of its
        human cost, the Act places particular obligations on an employer, most of which
        are directed toward ensuring that all possible alternatives to dismissal are explored
        and that the employees to be dismissed are treated fairly.

**Fair reason**

 1.  a. To be fair, the reason for the retrenchment and the decision to select an employee
        for retrenchment must relate to the employer’s operational requirements.
     b. Dismissal must be a measure of last resort. It should only take place if it cannot
        be avoided by alternatives identified in the consultation process.
         (3) Employers
        must, of their own initiative, take appropriate steps to avoid retrenchments where
        reasonably possible.

**Fair procedure.**

_Written notice_

 1.  a. When an employer contemplates the possibility of retrenchments, it must initiate
        a process of consultation by giving a written notice.
     b. The notice should be in the form of Annexure A. The notice must contain the relevant
        information available to the employer at that time.

_Consulting parties_

 1.  a. The notice must be sent to those set out in section 189 (1) for the purpose of
        consultation.
     b. Employers, including small employers, that have not concluded a collective agreement
        that applies to retrenchment consultations, should send the notice to a registered
        trade union whose members are likely to be affected by the proposed retrenchments,
        or if there is no such union, to each employee whom the employer proposes to retrench.

_Consultation_

 1.  a. The employer must then consult with a view to reaching consensus.
     b. The employer must consult in good faith by keeping an open mind and seriously 
        considering. any proposals put forward by the union or employees.
     c. The consultations should cover;
     d.  a. the reasons why there is a need to retrench;
         b. appropriate measures to
         c.  a. avoid the retrenchments;
             b. minimise the number of retrenchments;
             c. change the timing of the retrenchments;
             d. mitigate the adverse effects of the retrenchments; and
         d. if the employees are to be retrenched
         e.  a. the method for selecting the employees to be retrenched;
                 and
             b. the severance pay.

_Selection criteria_

 1.  a. In the absence of an agreement between the consulting parties, the selection criteria
        must be fair and objective. Selection criteria that are generally accepted to 
        be fair and objective include length of service, retention of skills or the qualifications
        of employees.
     b. Irrespective of whether there is an agreement or not, selection based on union
        membership or activity, pregnancy or any other discriminatory ground can never
        be fair.

_Disclosure of information_

 1.  a. To ensure meaningful engagements, the employer must disclose relevant information.
     b. Section 189 (4)(a) of the Act, read with section 16, regulates disputes about 
        the disclosure of relevant information.

_The period of consultation_

 1.  a. The period taken for consultations and the number of consultation meetings is 
        dependent on numerous factors, such as the complexity of the issues giving rise
        to the retrenchments, the nature and size of the employer and the scale of the
        retrenchments.
     b. Simple retrenchments at a small employer can be done relatively quickly. Large
        and complex retrenchments will probably require more consultation meetings over
        a longer period of time.
     c. If section 189A of the Act is applicable, the minimum period for consultations
        is 60 days; however, a consulting party may not unreasonably refuse to extend 
        the period of consultation if such an extension is required to ensure meaningful
        consultation.

_Severance
 
The minimum amount of severance pay is prescribed in section 41 of 
the BCEA.

_Re-employment_
 Subject to the outcome of the consultation process, employees who
are retrenched may be given preference if the employer again hires employees with
comparable skills and qualifications.

[ Have your say on the new retrenchment rules](https://dearsouthafrica.co.za/code-of-good-practice/)

The Draft Code of Good Practice

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Labour Relations Act (LRA)

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A closer look at the draft Code of Good Practice on Dismissals — Webber Wentzel

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### In the News

    - BusinessTech — [New retrenchment rules coming for South Africa](https://businesstech.co.za/news/government/808052/new-retrenchment-rules-coming-for-south-africa/)
    - BIZ Community — [Groundbreaking draft dismissal code to transform South Africa’s workplace culture](https://www.bizcommunity.com/article/groundbreaking-draft-dismissal-code-to-transform-south-africas-workplace-culture-697791a)
    - Beech Veltman — [EMPLOYMENT LAW ALERT 1/2025: DRAFT CODE OF GOOD PRACTICE ON DISMISSAL](https://beechveltman.com/uncategorized/employment-law-alert-1-2025-draft-code-of-good-practice-on-dismissal/)
    - Department of Employment and Labour — [Call for inputs on Draft Code of Good Practice on Dismissal to regulate labour relations](https://www.labour.gov.za/call-for-inputs-on-draft-code-of-good-practice-on-dismissal-to-regulate-labour-relations)

### STATEMENTS AND MEDIA RELEASES

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Want to display your organisation’s statement? [Click here. ](https://dearsouthafrica.co.za/code-of-good-practice/summary/ rhino@dearsouthafrica.co.za?subject=org info for Conservation info page)

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### Freedom of Religion SA (FOR SA)

 TEMPLATE PROVIDED BY FOR SA

### I strongly oppose the Prevention and Combating of Hate Crimes and Hate Speech Bill [B9B – 2018], which I believe to be unconstitutional and unnecessary, for the following reasons:

 1. The Bill violates our constitutional rights as religious persons to express our
    religious beliefs without fear of punishment or persecution (section 15, read with
    section 16). Increasingly, around the world but also in South Africa, various holy
    scriptures (particularly on contentious issues) are regarded as “politically incorrect”
    or “offensive”, allegedly causing emotional and/or social harm.
 2. I specifically oppose the Bill’s:
 3.  a. wide definition of “harm” (in Clause 1);
     b. the failure to define “hatred” (in Clause 1); and
     c. definition of, and creation of, the crime of “hate speech” (in Clause 4).
 4. The creation of the crime of “hate speech” for saying / distributing something 
    which could possibly be construed as “harmful”, will have certain unintended consequences,
    namely the criminalisation of good / well-meaning people who will be prosecuted
    for saying what they sincerely believe (according to their holy texts) and sent
    to jail.
 5. There are already sufficient existing laws dealing with “hate speech”.
 6. For all of the reasons given, I ask:
 7.  a. For the scrapping of the “hate speech” sections from the Bill altogether;
     b. Alternatively, should the “hate speech” provisions remain part of the Bill, we
        ask:
     c.  a. That “harm” be defined as: “gross emotional and psychological detriment that 
            objectively and severely undermines the human dignity of the targeted group”;
            and
         b. That “hatred” be defined as: “strong and deeply-felt emotions of enmity, ill-
            will, detestation, malevolence and vilification against members of an identifiable
            group, that implies that members of that group are to be despised, scorned, denied
            respect and subjected to ill-treatment based on their group affiliation”.
     d. That Clause 4(2)(d) (the “religious exemption clause”) be strengthened as follows
        to protect:
         _“expression of any religious conviction, tenet, belief, teaching,
        doctrine or writings, by a religious organisation or an individual, in public 
        or in private, to the extent that such expression does not actively support, instigate,
        exhort, or call for extreme detestation, vilification, enmity, ill-will and malevolence
        that constitutes incitement to cause gross emotional and psychological harm that
        severely undermines the dignity of the targeted group, based on race, ethnicity,
        gender, religion or sexual orientation”._