By Sameera Ahmed | September 2025
On 4 September 2025, the Department of Employment and Labour introduced a new Code of Good Practice: Dismissal under the Labour Relations Act. This single Code now replaces both Schedule 8 of the LRA (the old dismissal Code) and the 1999 Retrenchment Code, bringing all forms of dismissal—misconduct, incapacity, and operational requirements – into one framework .
Below, we highlight what’s different from the old Code, what’s been clarified, and how employers can prepare.
| Old vs New: Code of Good Practice – Dismissal (2025) | ||
| Topic | Old Code (Schedule 8 & 1999 Retrenchment Code) | New Code (Sept 2025) |
| Scope | Separate Codes: Schedule 8 (misconduct/incapacity) & 1999 Retrenchment Code. | Single integrated Code covering misconduct, incapacity & operational requirements. |
| Small Businesses | Flexibility implied but not explicit. | Explicit recognition that smaller employers may use simpler procedures, with fairness judged contextually. |
| Misconduct | Often treated as requiring a formal hearing. | Allows informal, proportionate processes; must ensure genuine dialogue and use of language employee understands. |
| Probation | Focused mainly on performance. | Expanded to include performance & suitability. |
| Poor Performance (post-probation) | Expected progressive warnings before dismissal. | Adds achievability test: was standard realistic? Warnings may not always be required for senior/specialist roles. |
| Incapacity | Limited to ill-health and injury. | Expanded to include imprisonment and incompatibility. |
| Operational Requirements | Guided by separate 1999 Retrenchment Code. | Now included; provides Section 189(3) notice template aligned with LRA disclosure requirements. |
| Industrial Action | Minimal guidance. | Adds criteria for dismissal during unprotected strikes (e.g., seriousness, harm, legitimacy of demands). |
What Employers Should Do Now
To align with the 2025 Code, employers should:
- Update HR Policies
- Revise disciplinary, incapacity, probation, and retrenchment procedures to reflect the new definitions and inclusions.
- Include recognition of incompatibility and imprisonment as incapacity grounds.
- Train Managers and Supervisors
- Emphasise that formal hearings are not always necessary—but genuine dialogue and documentation are.
- Provide training on handling probation fairly and assessing “reasonably achievable standards.”
- Strengthen Record-Keeping
- Implement templates for probation reviews, incapacity consultations, and Section 189(3) notices.
- Ensure all meetings (informal or formal) are documented.
- Adopt a Contextual Approach
- Apply procedures proportionately, considering company size and resources.
- Avoid “tick-box” compliance; fairness is measured by substance, not formality.
- Engage Proactively with Unions and Employees
- Use the Section 189(3) template as a minimum disclosure baseline.
- Build consultation into organisational culture, not just legal compliance.
Summary
The 2025 Code of Good Practice: Dismissal raises the bar by demanding authentic consultation, contextual fairness, and broader recognition of incapacity scenarios. Employers who update their processes now will reduce CCMA risks and build trust-based workplace cultures.
At Pinnacle HR, we can help you audit policies, train leadership teams, and design dismissal processes that align with the new Code while maintaining fairness and operational efficiency.