What’s Changed, What’s Clarified, and Where Employers Are Still Getting It Wrong

South Africa’s new Code of Good Practice: Dismissal, published in the Government Gazette on 4 September 2025, is not a radical rewrite of dismissal law. Instead, it does something far more important (and arguably more dangerous for employers): it clarifies expectations. And clarity, at the CCMA, cuts both ways.

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For years, employers have comforted themselves with the idea that dismissal outcomes are unpredictable, commissioner-dependent, or “just bad luck.” The updated Code quietly removes much of that excuse. It distils what the Labour Courts and CCMA have been saying for over two decades and puts it, plainly, back in front of employers.

A Reminder: The Code Is Not Optional

Although the Code is not legislation in the strict sense, it is issued in terms of the Labour Relations Act and must be taken into account when determining the fairness of a dismissal. Commissioners are not required to follow it blindly, but employers ignore it at their peril.

In practice, the Code functions as the benchmark against which employer conduct is measured. Deviations are allowed — but only where they are reasonable, justified, and fair.

Substantive Fairness: The Bar Has Not Moved, but the Excuses Have

The Code reiterates a principle that is often misunderstood: Dismissal is not about whether misconduct occurred, but whether dismissal was an appropriate sanction in the circumstances.
Key points reinforced by the Code include:

• The rule must exist, be lawful, reasonable, and known to the employee.
• The rule must have been consistently applied.
• The employee must have breached the rule.
• Dismissal must be appropriate, taking into account:
  • the seriousness of the misconduct,
  • the employee’s length of service,
  • disciplinary history,
  • the nature of the job, and
  • the impact on the employment relationship.

What the new Code subtly does is remove tolerance for lazy conclusions. Statements like “trust has broken down” or “the misconduct is serious” are no longer enough unless they are supported by evidence and reasoning.

Procedural Fairness: Less Formal, Not Less Serious

One of the most persistent myths in South African labour law is that procedural fairness requires a “mini-court.” The Code once again confirms that disciplinary procedures need not be overly formal. However, informality is not a licence for shortcuts.
The updated Code reinforces that employees must still:

• be informed of the allegations in a manner they understand,
• be given a reasonable opportunity to prepare,
• be allowed to state their case and respond to evidence,
• have assistance where appropriate, and
• receive a decision that is reasoned, not arbitrary.

An issue we continue to see is employers confusing speed with fairness. A quick process that denies preparation or fails to engage with the employee’s version remains procedurally unfair — even if the outcome feels “obvious.”

Progressive Discipline: Still Ignored, Still Costly

The Code re-emphasises progressive discipline, especially for misconduct that is not gross in nature. Warnings, counselling, and corrective measures are not bureaucratic hurdles; they are evidence.
Employers often arrive at arbitration arguing that “this was the final straw,” only to discover there are:

• no valid warnings,
• no proof of counselling,
• no records of prior misconduct.

In those cases, the CCMA is not “protecting employees”; it is responding to an evidentiary vacuum created by the employer.

Poor Performance and Incapacity: The Most Misapplied Area
The Code once again draws a sharp distinction between:

• misconduct,
• poor work performance, and
• incapacity due to ill health or injury.

Yet employers continue to discipline poor performance as misconduct — a mistake that almost always results in an adverse award.
The Code makes it clear that poor performance dismissals require:

• clear performance standards,
• appropriate training and guidance,
• a reasonable opportunity to improve, and
• an assessment of alternatives before dismissal.

Dismissal for incapacity, particularly ill health, remains one of the most nuanced areas of labour law. The Code reinforces the duty to investigate alternatives and engage meaningfully before terminating employment.

A Pattern the Code Exposes: Employers Still Underestimate Process

If there is one theme running through the new Code, it is this:
Fairness is demonstrated, not asserted.
Employers often believe they acted fairly because they felt fair, or because the outcome seemed justified. The Code — echoing years of case law — reminds us that fairness must be visible on paper.
At arbitration, it is not what you intended, believed, or assumed that matters. It is:

• what you can prove,
• what you recorded,
• and how you applied your own rules.

What Employers Should Be Doing Now

The publication of the new Code is a good moment for employers to pause and ask some uncomfortable questions:

• Are our disciplinary procedures aligned with the Code?
• Do our managers understand the difference between misconduct and incapacity?
• Are we documenting decisions properly — including mitigation and reasoning?
• Are hearings being conducted consistently across the organisation?

The Code has not changed the law dramatically. But it has reduced ambiguity. And when ambiguity disappears, accountability increases.

For employers, the message is simple:
Dismissals are still defensible — but only when fairness is deliberate, structured, and properly recorded.