For most people, the thought of being dismissed from a job is a source of profound anxiety. It’s often viewed as an abrupt, one-sided decision where the employer holds all the power.
This perception is fueled by misconceptions about what is and isn’t legally permissible, leading both employees and employers to navigate workplace conflicts with a sense of uncertainty and fear.
However, the legal framework governing dismissals in South Africa is far more nuanced and focused on fairness than many assume.
The new Code of Practice: Dismissal (Gazetted 4 September 2025), which repeals the previous Schedule 8, is built on a foundation of;
- mutual respect,
- corrective action, and
- procedural integrity.
It establishes that dismissal should always be the last resort, not the first reaction.
In this post we reveal five of the most impactful and counter-intuitive takeaways from this new code. Understanding these principles is essential for any employee who wants to know their rights and any employer who aims to build a fair, legally compliant, and productive workplace.
1: Discipline is About Correction, Not Punishment
A common belief is that a disciplinary hearing is simply a prelude to punishment. The new Code, however, fundamentally reframes this process. It champions the concept of “corrective or progressive discipline,” where the primary goal is not to penalize an employee but to guide their behaviour and help them meet the required standards.
This approach mandates a system of graduated measures. For minor issues, the process should begin with informal advice and correction. Only for repeated misconduct or more serious infractions should an employer move to formal warnings.
This principle is clearly articulated in the Code:
The purpose of implementing disciplinary processes is corrective. They are primarily a means to correct an employee’s behaviour through graduated disciplinary measures.
Section 6(2), Code of Good Practice: Dismissal (2025)
From a strategic HR perspective, this is more than just a philosophy of fairness; it’s a crucial risk-mitigation strategy. By following a corrective path, an employer creates a clear, documented paper trail demonstrating procedural fairness.
This makes a subsequent dismissal, should it become necessary, far more robust and defensible against a challenge at the CCMA or bargaining council. Improvement, development and guidance is encouraged over fear.
2: Small Businesses Get a Dose of Reality
Legal and procedural codes can often feel disconnected from the realities of running a small business. Think about a barber shop, laundromat or your local butcher for instance.
The new Code directly addresses this by making special considerations for smaller employers, acknowledging that they operate under different constraints than large corporations.
The Code explicitly states that small businesses cannot be expected to have dedicated human resources departments or to engage in the same lengthy, formal processes as their larger counterparts.
It should also be borne in mind that small employers do not have human resource departments staffed by people with skills and experience in these matters.
Section 3(3), Code of Good Practice: Dismissal (2025)
This provision reveals a sophisticated legal balancing act. It shows the law is not a rigid, one-size-fits-all instrument. It balances the core principle of fairness against the need to avoid creating an undue administrative burden that could stifle small business operations.
The standard of fairness remains absolute, but the formality of the procedure is adaptable to the employer’s capacity, ensuring justice is practical.
3: Retrenchment Is a "No-Fault" Dismissal
Losing your job due to retrenchment can feel deeply personal, but the Code provides a powerful and important confirmation.
Dismissal for “operational requirements” – the legal term for retrenchment – is explicitly defined as a “no fault” dismissal. This means the termination is not a reflection of the employee’s conduct, capacity, or performance, but a result of the employer’s own economic, technological, or structural needs.
This distinction is not just semantic. It has profound implications for the employer’s obligations.
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.
Section 22(3), Code of Good Practice: Dismissal (2025)
This framing creates a crucial psychological and procedural shift. While the employee is absolved of fault, the employer’s actions are placed under an intense microscope.
The burden of proof is immense: any failure to genuinely explore alternatives, consult meaningfully, or follow the consultation process can render an otherwise necessary dismissal unfair.
4: The Probation Period Isn't a Wild West
One of the most persistent myths in the workplace is that the probation period is a lawless “Wild West” where an employer can fire a new hire for any reason, or no reason at all. The new Code makes it clear this is not the case.
The purpose of probation, according to the Code, is specific: to give the employer a fair opportunity to evaluate the employee’s performance and suitability for the role. Crucially, it forbids employers from using probation as a tool to simply churn through new staff to avoid the responsibilities of permanent employment.
Even during probation, an employer cannot simply show someone the door. Before a decision to dismiss is made, the employer must give the employee an opportunity to make representations.
While the Code does state in Section 18(2) that the reasons for dismissal during probation can be “less compelling” than for a permanent employee, a fair process must still be followed, ensuring that the decision is tied to the employee’s performance or suitability and is not arbitrary.
5: Participating in an Unprotected Strike May Not Be a Firing Offense
Perhaps the most surprising principle in the Code relates to industrial action. While participating in a strike that does not comply with the Labour Relations Act is defined as misconduct, it does not automatically give an employer the right to dismiss everyone involved.
The Code stipulates that the fairness of a dismissal in this context must be judged on the specific facts of the case. This includes considering whether the strike was a response to “unlawful, unfair or unreasonable conduct by the employer.”
Furthermore, process remains paramount. Before any dismissal can occur, the employer is required to follow clear steps, including issuing a clear, unambiguous ultimatum.
This demonstrates the law’s recognition of power dynamics in the workplace. Even when employees engage in unprotected (and therefore unlawful) conduct, the law still requires an examination of the employer’s own behavior that may have provoked the situation.
It shows that fairness is a two-way street, even in the most contentious scenarios.
A Code Built on Fairness
Ultimately, the Code reframes dismissal not as a tool of authority, but as a failure of a process. It challenges both managers and employees to prioritize communication, documentation, and corrective action as the true foundations of a stable and fair workplace.
It establishes dismissal as the final step in a carefully considered process, to be used only after other corrective measures and alternatives have been properly explored.
Knowing the law prioritizes dialogue and correction, how might that change the way you approach difficult conversations in your own workplace?
Contact us at Welman Attorneys Inc. if you need your companies processes and disciplinary codes reviewed to ensure you comply with the new changes.