Welman Attorneys Inc.

Earnings Threshold Increases to R269 600.90: A Practical Guide for Employers

Welman Attorneys — Wed, 20 May 2026 11:21:02 +0000

With the new earnings threshold of R269 600.90 per year now in effect, South African employers face a practical compliance moment.

Failing to adjust payroll structures, employment contracts and HR policies to reflect the new threshold can expose businesses to unfair labour practice claims, disputes at the CCMA, and costly Labour Court proceedings.

At Welman Attorneys Inc, our labour and employment law team works with businesses of all sizes to manage their legal obligations under South African labour legislation. This guide sets out what employers need to do – right now.

Step 1: Identify Affected Employees

The first practical step is to identify employees earning between R261 748.45 and R269 600.90 per year.

These employees have moved from above to below the threshold and are now newly entitled to the protections of sections 9 to 18 of the BCEA. Payroll departments should conduct a threshold audit immediately to identify affected staff members.

Remember: “earnings” for threshold purposes is regular annual remuneration before deductions, excluding employer contributions to pension or medical aid, subsistence and transport allowances, achievement awards and overtime payments.

Step 2: Review Employment Contracts

Employment contracts that previously excluded BCEA protections on the basis that the employee earned above the threshold may now be inconsistent with the law.

Welman Attorneys Inc advises employers to review all contracts for employees near the threshold band and to seek legal advice before making any changes.

Critically, where a contract provides benefits – such as overtime pay or Sunday premiums – that go beyond the minimum required by law, those provisions remain binding even if the employee earns above the threshold. Employers may not unilaterally remove contractual entitlements. Any variation must be agreed upon with the employee.

Step 3: Revisit Fixed-Term and TES Arrangements

Two important LRA provisions apply only to employees earning below the threshold:

Fixed-term employees: An employee earning below the threshold who is engaged on a fixed-term contract for longer than three months may be deemed to be employed indefinitely, unless there is a justifiable reason for fixing the term (section 198B of the LRA). Source: LRA
TES workers: An employee earning below the threshold who is placed by a temporary employment service for more than three months, or who is not merely substituting for a temporarily absent employee, may be deemed a permanent employee of the client (section 198A(3)(b) of the LRA)

Employers using fixed-term or TES arrangements should assess whether newly threshold-captured employees now fall within these provisions, and take steps to regularise such arrangements if necessary.

Step 4: Understand CCMA vs Labour Court Jurisdiction

The threshold also affects where disputes must be adjudicated. Employees earning below the threshold who have monetary claims arising from the BCEA, a contract of employment, a sectoral determination or a collective agreement may refer unresolved conciliation disputes to the CCMA for arbitration. Employees earning above the threshold must take such disputes to the Labour Court.

Similarly, unfair discrimination disputes under Chapter II of the EEA (other than sexual harassment claims) may only be arbitrated at the CCMA if the claimant earns below the threshold. Above-threshold employees must litigate in the Labour Court.

Step 5: Seek Expert Legal Advice

The earnings threshold touches every facet of employment law. Non-compliance carries real risk: claims for underpaid overtime, reinstatement of employees incorrectly classified as fixed-term workers, and costly Labour Court litigation are all potential consequences.

Proactive legal advice is always less expensive than reactive litigation.

Welman Attorneys Inc provides comprehensive labour and employment law services to employers across South Africa, including:

Threshold compliance audits and payroll reviews
Drafting and updating employment contracts and HR policies
Advice on fixed-term and TES worker classifications
Representation at the CCMA and the Labour Court
Proactive training and workshops for HR and management teams

Contact Welman Attorneys Inc today to schedule a consultation with one of our experienced labour lawyers. We are here to ensure your business remains compliant, your employees are treated fairly, and your interests are protected

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South Africa’s New Earnings Threshold: What Every Employer and Employee Needs to Know

Welman Attorneys — Mon, 18 May 2026 10:58:26 +0000

The South African Minister of Employment and Labour has announced an increase in the annual earnings threshold, effective 1 May 2026.

The new threshold is set at R269 600.90 per year (R22 466.74 per month), representing an increase of R7 852.45 – or 3% – from the previous threshold of R261 748.45 that has been in place since 1 April 2025.

At Welman Attorneys Inc, our specialist labour law team advises employers and employees across South Africa on how legislative changes such as this one affect their rights and obligations. Here is what you need to know.

What Is the Earnings Threshold?

The earnings threshold is a monetary benchmark, determined periodically by the Minister of Employment and Labour under the Basic Conditions of Employment Act 75 of 1997 (“BCEA”).

Employees who earn above this threshold are excluded from the protection of certain key provisions of the BCEA, the Labour Relations Act 66 of 1995 (“LRA”) and the Employment Equity Act 55 of 1998 (“EEA”).

For purposes of the threshold, “earnings” means an employee’s regular annual remuneration before the deduction of income tax, pension fund contributions, medical aid contributions and similar payments. Importantly, subsistence and transport allowances, achievement awards and overtime payments are excluded from the calculation.

Which Employees Are Newly Protected?

Employees who currently earn between R261 748.45 and R269 600.90 per year will, from 1 May 2026, be entitled to the full suite of protections previously unavailable to them.

This includes the right to overtime pay, double pay for work on Sundays and public holidays, regulated meal intervals and rest periods, notwithstanding what their employment contracts may state.

Key Protections Under the BCEA

Employees who earn at or below the threshold are entitled to the protection of the following BCEA provisions:

Regulation of ordinary hours of work (section 9)
Overtime pay (section 10)
Compressed working week arrangements (section 11)
Averaging of hours of work (section 12)
Meal intervals (section 14)
Daily and weekly rest periods (section 15)
Additional pay for Sunday work (section 16)
Pay for night work (section 17(2))
Pay for public holidays on which the employee would not ordinarily work (section 18(3))

Implications Under the LRA and EEA

The threshold also has important implications beyond the BCEA. Under the LRA, employees earning below the threshold who are placed by a temporary employment service (“TES”) for more than three months may be deemed permanent employees of the client.

Similarly, fixed-term employees earning below the threshold may be deemed indefinitely employed after three months if there is no justifiable reason for the fixed term. These protections do not extend to those earning above the threshold.

Under the EEA, an employee earning above the threshold who has an unfair discrimination dispute (other than one involving sexual harassment) must refer that dispute to the Labour Court for adjudication, rather than to the CCMA for arbitration.

Can Existing Contracts Be Changed?

An important practical point: where an employee earns above the threshold but their employment contract already provides for overtime pay, Sunday pay or other benefits regulated by the BCEA, those contractual provisions remain valid and enforceable.

An employer cannot unilaterally remove them. Any change to existing terms and conditions of employment must be negotiated with the affected employees.

How Welman Attorneys Inc Can Help

At Welman Attorneys Inc, we understand that changes to the earnings threshold can have significant practical consequences for your business or your employment. Our labour law team assists clients with:

Reviewing and updating employment contracts to ensure compliance with the new threshold
Advising employers on their payroll obligations and exposure to claims
Representing employees who are now newly entitled to BCEA protections
Navigating CCMA proceedings or Labour Court referrals arising from disputes
Advising on the correct classification of TES workers and fixed-term employees

Whether you are an employer seeking to ensure compliance or an employee whose rights have changed, contact Welman Attorneys Inc for expert, practical advice tailored to your circumstances.

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Youth Day in South Africa and Its Connection to Labour Law

Welman Attorneys — Wed, 06 May 2026 01:30:25 +0000

Observed annually on 16 June, Youth Day is one of South Africa’s most powerful and historically significant public holidays. While it is often associated with remembrance and reflection, it also has important legal and socio-economic implications, even more so when viewed through the lens of labour law and youth employment.

For businesses, educators, and legal practitioners such as Welman Attorneys Inc., Youth Day serves as a reminder of how far South Africa has come and how the law continues to shape opportunities for young people entering the workforce.

The Origin of Youth Day

Youth Day commemorates the Soweto Uprising, which took place on 16 June 1976. On this day, thousands of black school learners in Soweto protested against the apartheid government’s decision to enforce Afrikaans as a medium of instruction in schools.

The protest quickly escalated into a nationwide movement after police responded with force. The events of that day exposed the harsh realities of the apartheid regime and drew global attention to the injustices faced by South African youth.

50 years later, Youth Day still honours the courage and sacrifice of those young people who stood up for their right to education, dignity, and freedom.

Why Youth Day Matters in Modern South Africa

Youth Day is not only a historical commemoration. It is also a reflection of ongoing challenges. South Africa continues to face high levels of youth unemployment, making the empowerment and protection of young workers a national priority.

The holiday highlights the importance of:

These themes are deeply connected to South Africa’s legal framework.

The Connection Between Youth Day and Labour Law

While Youth Day is not a labour-specific holiday like Workers’ Day, it has strong indirect links to labour law – particularly in how legislation protects and empowers young people in the workforce.

1. The Right to Fair Labour Practices

The Constitution of South Africa guarantees everyone the right to fair labour practices. This includes young employees, who are often more vulnerable to exploitation due to lack of experience or bargaining power.

Youth Day reinforces the importance of ensuring that young workers are treated fairly, paid appropriately, and protected from unsafe working conditions.

2. Protection Against Child Labour and Exploitation

The Basic Conditions of Employment Act (BCEA) specifically prohibits child labour and sets strict rules regarding the employment of minors.

Key protections include:

These legal safeguards align with the values that Youth Day represents: protecting young people and ensuring their development is not compromised.

3. Skills Development and Youth Employment

Post-apartheid legislation has placed strong emphasis on skills development as a pathway to economic inclusion. Initiatives supported by the Skills Development Act aim to improve employability, particularly among young people.

Youth Day serves as a reminder that access to education must translate into real economic opportunities. Learnerships, internships, and training programmes are all legal mechanisms designed to bridge the gap between education and employment.

4. Equality and Non-Discrimination in the Workplace

The legacy of the Soweto Uprising is closely tied to the fight for equality. Today, laws such as the Employment Equity Act ensure that young people are not discriminated against based on race, gender, or background.

For young entrants into the workforce, these protections are critical in creating fair access to employment opportunities.

Youth Day and Employer Responsibility

For employers, Youth Day is an opportunity to reflect on how their organisations support young talent. This includes:

Failure to comply with these legal obligations can result in disputes, penalties, and reputational harm.

More Than Just a Holiday

Youth Day is not only about remembering the past and having an off day.

It highlights the ongoing responsibility to create real opportunities for young South Africans today. While it is not a labour-specific holiday, its relevance to employment law is clear in how legislation protects young workers and supports their entry into the economy.

From safeguarding against exploitation to enabling skills development and fair access to jobs, South Africa’s legal framework plays a central role in turning the ideals of Youth Day into practical outcomes.

For Welman Attorneys Inc., this day underscores the importance of applying the law in a way that supports both compliance and meaningful participation in the workplace for the next generation.

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The Legal Meaning Public Holidays in April and May in South Africa

Welman Attorneys — Mon, 13 Apr 2026 14:43:34 +0000

As April transitions into May, South Africa observes two of its most significant public holidays – Freedom Day and Workers’ Day. While many see these as opportunities for rest, they are deeply rooted in the country’s legal and constitutional framework.

For businesses and employees alike, these dates carry important implications, particularly in the context of labour law.

At Welman Attorneys Inc., understanding the legal foundation behind these holidays is essential for ensuring compliance and promoting fair workplace practices.

Why Public Holidays Exist in South Africa

Public holidays in South Africa are governed by the Public Holidays Act 36 of 1994. This legislation formalised a calendar that reflects the country’s democratic values and historical milestones.

These holidays are designed to commemorate key events that shaped the nation, particularly the transition to democracy and the recognition of fundamental human rights.

From a legal perspective, public holidays are not merely symbolic – they directly affect employment relationships. The Basic Conditions of Employment Act (BCEA) outlines how employees must be treated on public holidays, including rules around paid leave and compensation for work performed on these days.

Freedom Day (27 April): A Constitutional Milestone

Freedom Day commemorates South Africa’s first democratic elections in 1994. This historic moment marked the end of apartheid and the beginning of a constitutional democracy founded on equality, dignity, and human rights.

For legal practitioners, Freedom Day represents the foundation of modern South African law. The Constitution, which followed shortly thereafter, established key rights that continue to shape employment law today, including the right to fair labour practices.

Every employment contract and workplace policy must align with these constitutional principles, making Freedom Day a cornerstone of the legal system.

Workers’ Day (1 May): The Foundation of Labour Rights

Workers’ Day is one of the most important dates in the labour law calendar. Celebrated on 1 May, it honours the struggles of workers and trade unions in securing fair working conditions.

Its origins lie in the global labour movement, particularly the fight for reasonable working hours and safer workplaces. In South Africa, however, Workers’ Day also reflects the role of trade unions in opposing apartheid and advocating for both political and economic rights.

Officially recognised as a public holiday after 1994, Workers’ Day serves as a reminder of the legal protections now embedded in South African law.

Labour Law Implications for Employers and Employees

Workers’ Day highlights several critical aspects of labour law:

Public Holiday Pay: Employees are entitled to paid leave on public holidays. If they work, they must be compensated in accordance with the BCEA.
Fair Labour Practices: Employers must uphold fair treatment, as protected by the Constitution and labour legislation.
Working on Public Holidays: Work on these days must be agreed upon, and additional pay or time off may be required.
Collective Bargaining Rights: The historical role of trade unions reinforces the importance of employee representation in the workplace.

Failure to comply with these requirements can lead to legal disputes and penalties, making it essential for employers to fully understand their obligations.

The Connection Between Freedom Day and Workers’ Day

The timing of these holidays is significant. Freedom Day represents the establishment of democratic rights, while Workers’ Day reflects how those rights are applied in the workplace.

Together, they illustrate the evolution of South Africa’s legal system – from political freedom to economic and workplace fairness. Labour law is, therefore, an extension of constitutional rights, ensuring that dignity and equality are upheld in every employment relationship.

For businesses, these holidays serve as important compliance checkpoints. For employees, they reinforce hard-earned rights and protections.

Welman Attorneys Inc. encourages both employers and employees to view these holidays not only as time off, but as an opportunity to reflect on the legal principles that govern fair and equitable workplaces in South Africa.

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How Employees Benefit from Legal Oversight in an Employer of Record Relationship

Welman Attorneys — Wed, 11 Mar 2026 21:04:00 +0000

Employees in South Africa have recently benefited from the Employer of Record (EOR) model that has created new employment opportunities.

Through an EOR, South African employees can work for international companies while being legally employed by a local provider. This structure allows global companies to access South African talent without establishing a local company.

While this model offers exciting opportunities, it also raises important questions for employees.

Who protects their rights if something goes wrong?

This is where labour law expertise from firms like Welman Attorneys Inc plays an important role.

Employees Are Protected by South African Labour Law

Regardless of whether an employee works directly for a company or through an EOR structure, they are protected by South African labour legislation.

This includes laws such as:

These laws guarantee employees rights related to:

The Complexity of EOR Employment

In an EOR arrangement there are typically three parties involved:

The employee
The EOR provider (legal employer)
The international company directing the work

This three-party relationship can sometimes create confusion about responsibilities and decision-making authority.

For example:

Clear legal structures help ensure employees are treated fairly within this framework.

Legal Oversight Protects Fair Treatment

Labour law attorneys play an important role in ensuring the EOR model operates ethically and legally.

When EOR providers work with experienced labour law specialists, employees benefit from:

1. Proper Employment Contracts

Clear contracts define responsibilities and protect employee rights.

2. Fair Disciplinary Procedures

Employees are entitled to due process before disciplinary action is taken.

3. Lawful Termination Processes

Dismissals must follow legal procedures and be supported by valid reasons.

4. Access to Dispute Resolution

If disagreements arise, employees have access to formal legal mechanisms.

Creating Confidence in Global Employment

The EOR model can create incredible opportunities for South African professionals to work with international companies while remaining protected by local labour law.

With responsible EOR providers and legal guidance from firms like Welman Attorneys Inc, employees can enjoy the benefits of global employment while maintaining the protections offered by South African labour legislation.

When the legal structure is sound, everyone wins – the employer, the EOR provider, and the employee.

If you are an employee working via an EOR or you are in the process of considering working with one, contact us for legal guidance and surety.

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Why Employer of Record Providers Benefit from Working with a Labour Law Attorney

Welman Attorneys — Wed, 11 Mar 2026 20:51:25 +0000

Employer of Record (EOR) providers make it possible for global companies to hire South African talent without establishing a local entity. But with this opportunity comes significant legal responsibility.

Because the EOR is the legal employer on record, it carries substantial liability under South African labour law.

This is why many EOR providers partner with experienced labour law specialists such as Welman Attorneys Inc.

The Legal Responsibility of an Employer of Record

In an EOR structure, the provider is typically responsible for:

Because the EOR is the official employer, employees often direct legal disputes against the EOR provider itself.

These disputes frequently end up at the Commission for Conciliation, Mediation and Arbitration (CCMA).

Without proper legal structures and processes, the risk exposure can be significant.

Key Legal Risks for EOR Providers

The legal environment in South Africa is designed to protect employees. Laws such as the Labour Relations Act require employers to follow strict procedures when disciplining or dismissing employees.

Common risk areas include:

EOR providers must often balance client expectations with legal obligations, which can create difficult situations.

The Value of Proactive Legal Support

Working with a labour law attorney allows EOR providers to operate with greater confidence and professionalism.

1. Contract Structuring

Legal experts help ensure employment contracts and service agreements properly reflect the EOR relationship and allocate risk appropriately.

2. Disciplinary and Dismissal Procedures

Labour law attorneys ensure processes align with South African legal requirements, reducing the likelihood of successful claims.

3. Dispute Representation

If disputes escalate, legal representation at the CCMA becomes essential. Early legal involvement often prevents cases from escalating.

4. Policy Development

Clear workplace policies help EOR providers maintain consistency across multiple international clients.

Strengthening the EOR Industry

As the EOR industry grows in South Africa, providers who prioritise legal compliance will gain a strong competitive advantage.

By partnering with Welman Attorneys Inc, EOR providers gain access to specialised labour law expertise that protects their operations, supports their clients, and ensures fair treatment of employees.

The result is a more resilient and trustworthy EOR service offering.

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Why Companies Using an Employer of Record in SA Still Need a Labour Law Attorney

Welman Attorneys — Wed, 11 Mar 2026 20:12:34 +0000

Expanding into new markets has never been easier thanks to the rise of the Employer of Record (EOR) model. For international businesses looking to hire employees in South Africa, an EOR allows them to employ staff legally without establishing a local entity.

But while an EOR simplifies market entry, it does not eliminate legal risk. South African labour law is highly regulated and employee-protective, meaning international companies still benefit significantly from independent legal oversight.

This is where the expertise of Welman Attorneys Inc becomes critical.

Understanding the Limits of an Employer of Record

An Employer of Record typically manages:

However, the EOR provider’s role is primarily administrative and operational. They are not necessarily responsible for advising the international company on broader labour law risks, strategic employment decisions, or dispute resolution.

International companies often assume the EOR model transfers all legal liability, but in practice the client company still influences employment decisions, which can expose them to legal risk.

A labour law attorney ensures that these risks are properly managed.

South African Labour Law Is Complex

South Africa has one of the most comprehensive labour law systems in the world. Legislation such as the:

creates strict compliance obligations for employers.

If an international company directs an EOR-employed worker in a way that violates these laws, disputes can arise regardless of the EOR structure.

For example:

These issues often end up before the Commission for Conciliation, Mediation and Arbitration and their associated councils.

Legal Guidance for Global Employers

A labour law specialist provides value by helping international companies:

1. Structure Their EOR Relationship Correctly

Legal oversight ensures that the contractual relationship between the international company and the EOR is structured to minimise liability and clarify responsibilities.

2. Navigate Employee Terminations

Termination laws in South Africa require both substantive and procedural fairness. A labour law attorney helps ensure dismissals are legally defensible.

3. Manage Employee Disputes

Disputes can escalate quickly if not handled correctly. Legal guidance ensures the right process is followed from the beginning.

4. Align HR Policies With South African Law

Global companies often try to apply international HR policies that conflict with local regulations. Legal review ensures compliance without disrupting company culture.

Protecting International Growth

Hiring through an EOR is a powerful strategy for entering new markets quickly. But growth should never come at the expense of compliance.

With the guidance and experience of Welman Attorneys Inc in this field, international companies gain a trusted legal partner who understands both South African labour law and the complexities of the EOR employment model.

The result is simple: faster expansion with lower legal risk.

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Applying the 2025 Code of Practice: Dismissal in Small Businesses in South Africa

Welman Attorneys — Mon, 16 Feb 2026 20:20:31 +0000

The Code of Good Practice has been updated in 2025 to provide small business in South Africa with more power when it comes to dismissals in the workplace. However, with more power comes more responsibility to ensure a fair process in followed.

At Welman Attorneys Inc. we assist our customers with guidance on a weekly basis to ensure the process is fair towards not only the business, but also towards the employee.

Our quick reference guide for manager’s was developed to ensure small business comply with the legal requirements.

1. What And Who This Guide Is For

This guide helps small business owners and managers handle:

This needs to be done in a way that is legal, fair, and practical, even if you have no HR department.

2. Small Business Principles (2025 Code)

The 2025 Code now recognises small businesses and allows simpler processes as long as things are still fair.

You do NOT need

You DO need

3. Misconduct: Step-by-Step for Small Businesses

Misconduct is when an employee broke a rule or acted badly. The following are steps to guide you when conducting an enquiry into misconduct by an employee.

Examples of misconduct

Absenteeism
Theft or fraud
Fighting
Insubordination
Poor behaviour
Harassment
Repeated lateness

Step 1: Have a quick investigation

This can be very basic:

Step 2: Invite the employee to a “Misconduct Discussion”

Use simple language:

“I need to talk to you about a workplace issue. You can bring a co-worker if you want.”

Give them:

Step 3: The meeting

Keep it conversational and use the following basic procedure for the meeting:

Step 4: Decide on the outcome

Possible outcomes after of during the meeting could be:

Note that dismissal of an employee is only fair if:

Step 5: Give the outcome in writing to the employee

Keep it short and simple:

“After our meeting today, you are issued a written/final warning for ___.” 

OR: 

“Your employment is terminated due to serious misconduct.”

Keep a copy of your communication and ensure it contains the dates of the allegations, when the employee was informed of the allegations and meeting, when the meeting took place, and the date the employee received the outcome.

4. Performance Problems (Poor Work Performance)

Performance relating to problems and poor performance is when the employee can’t do the job properly, even if they are trying. The following steps is a guidance on how to address this situation.

Step 1: Tell them what’s wrong

Keep your grievance relating to poor work performance clear:

Step 2: Provide guidance and training

This can be achieved by:

Step 3 - Provide reasonable time to improve

Depending on the job requirements and the improvement needed:

Step 4: Have a follow-up meeting

Step 5: If standard are still not met

Call a meeting with the employee and:

5. Probation Problems

Probation is a testing period for employees, not a free pass to dismiss them.

Employers must:

Guide the new employee
Explain performance expectations
Warn them early if there is a problem with their performance
Provide them with a chance to improve
Allow them to make representations before dismissal

The 2025 Code allows lower thresholds for probation dismissals compared to permanent staff.

6. Incapacity (Illness, Injury, Incompatibility)

There are 3 types of incapacity:

Step 1: Identify the incapacity

Is the employee:

Step 2: Consult with the employee

Ask the employee:

Step 3: Look for alternatives

Examples to consider:

Step 4: If no alternatives exist

Hold a meeting with the employee and keep notes:

7. Retrenchment (Operational Requirements)

The 2025 Code of Good Practice provides clear guidance for small business retrenchments.

Step 1: Give written notice

Explain to the employee(s):

The reasons for retrenchment
Which positions are affected
Timing
Possible alternatives
Proposed severance
Selection criteria (e.g., skills OR LIFO)

Step 2: Consultation

Even a single meeting with employees affected counts.

Discuss the following with them:

Step 3: Final decision

After considering all inputs from employees, make the final decision.

Step 4: Notice of termination

Step 5: Pay severance

Minimum: 1 week’s pay per completed year of service

What Small Businesses Must Remember

Whenever you are engaging with employees on dismissals, performance meetings and/or retrenchment consultation, always keep the following in mind.

You can keep things simple, but it must be fair
Always talk to the employee first
Always listen to their side
Always give reasonable time to fix performance issues
Always keep basic written notes
Dismissal should be a last resort

Should you require any assistance with this process, please contact Welman Attorneys Inc. for a consultation.

Download your FREE guide!

Please provide your details below and download our Dismissal Checklist for Small Businesses in PDF format. This can be printed out and used as a guide.

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5 Surprising Truths in South Africa’s New Dismissal Code

Welman Attorneys — Fri, 19 Dec 2025 14:25:08 +0000

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;

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.

The post 5 Surprising Truths in South Africa’s New Dismissal Code appeared first on Welman Attorneys Inc..

A Disciplinary Hearing is not a Trial

Welman Attorneys — Fri, 19 Dec 2025 13:57:13 +0000

For many employees and managers, the phrase “disciplinary hearing” conjures images of a formal, intimidating courtroom.

We picture complex charge sheets, legal arguments, and a process that feels more like a criminal trial than a workplace meeting. This perception often leads to anxiety, inefficiency, and a focus on procedural technicalities rather than resolving the actual issue at hand.

However, this common view is largely a misunderstanding based on an outdated and overly rigid model. A landmark South African Labour Court judgment, Avril Elizabeth Home for the Mentally Handicapped v CCMA, clarified that the system established by the 1995 Labour Relations Act was designed to be much simpler, more flexible, and focused on dialogue.

In this post we unpack the surprising and commercially critical takeaways from this case that should inform every disciplinary policy and action for companies in South Africa.

Disciplinary Hearing or Criminal Trial?

The 1995 Labour Relations Act (LRA) represented a deliberate and fundamental departure from the ‘criminal justice’ model that previously governed workplace discipline.

That old approach, which mimicked a formal trial, was deemed inefficient, overly complex, and inappropriate for resolving workplace issues. It recognised that managers are not judges and that workplace issues require a more practical and less time consuming approach.

The judgment in the Avril Elizabeth Home case powerfully highlights this shift in philosophy:

The balance struck by the LRA thus recognises not only that managers are not experienced judicial officers, but also that the workplace should not be unduly impeded by onerous procedural requirements.
This change is crucial. It shifts the focus from winning a legal battle to resolving issues efficiently and rationally, without getting bogged down in complex procedures that belong in a courtroom, not a boardroom.

The Old Code of Good Practice was Surprisingly Simple, the new Code confirms

The LRA’s old Code of Good Practice: Dismissal “spelt out in specific terms” what a fair procedure entails, and it is not a long list of rigid rules.

Instead of complex legal requirements, the old Code outlines a straightforward process designed to ensure fairness without being overly formal. Based on the guidelines in Item 4 of the old Code, a fair procedure simply requires the following steps:

Conducting an investigation: The employer should normally investigate to determine if grounds for dismissal exist. Crucially, the Code notes this "does not need to be a formal enquiry."
Notification: The employer must notify the employee of the allegations in a way and language they can reasonably understand.
A chance to respond: The employee must be given an opportunity to state their case in response to the allegations.
Reasonable preparation time: The employee must be given a reasonable amount of time to prepare their response.
Assistance: The employee has the right to be assisted by a trade union representative or a fellow employee.
Communication of the decision: After the process, the employer must communicate the decision that has been taken.

The simplicity of this checklist is intentional. As the court highlighted by referencing international labour standards, the goal is to create and ensure “dialogue and reflection” occurs before a final decision is made.

Each step is merely a tool to facilitate a structured, fair conversation.

The new Code confirms this approach.

The Real Formal Hearing Happens Later (If Needed)

The reason the LRA allows for a simplified internal process is because it establishes a two-step system for ensuring justice. This system is designed to prevent a “duplication of process.”

The internal hearing is an opportunity for dialogue and for the employer to make an initial, rational decision. If the employee disputes a dismissal, the matter can then be referred to the CCMA or a bargaining council.

It is at this second stage, the arbitration, where a more formal process involving evidence and legal standards is applied by an independent third party. In South Africa, by a CCMA commissioner.

The court explained the logic behind this design:

The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. They recognise that for workers, true justice lies in a right to an expeditious and independent review of the employer’s decision to dismiss…
This means the internal hearing doesn’t have to be perfect or trial-like, because the ultimate check on fairness happens later, at a dedicated and independent forum.

The Old, Strict Rules on 'Bias' Don't Apply

A key procedural challenge in the Avril Elizabeth Home case involved an allegation of bias.

In the internal disciplinary hearing, the chairperson was a subordinate of the manager who initiated the complaint. Under the old “criminal justice” model, this fact could have successfully supported an argument for a “reasonable apprehension of bias,” potentially rendering the entire dismissal procedurally unfair.

However, the Labour Court found that the CCMA commissioner made a material error by applying this strict, outdated standard. The court rejected the argument, effectively stating that the realities of workplace hierarchies do not automatically create impermissible bias in the new, less formal system.

This is a pivotal shift for managers. It means that the mere existence of workplace hierarchies – where a senior manager initiates a complaint and their subordinate chairs the hearing – does not automatically invalidate a process.

The law now prioritizes substance and the ultimate check-and-balance of an independent CCMA arbitration over the rigid, often impractical, procedural purity demanded by the old model.

Do Your Own Policies and Processes Comply?

While the LRA provides for a less formal process, a company can legally bind itself to the old, formal “criminal justice model” through its own documents.

If an employer promises a more elaborate, trial-like procedure, it will be held to that higher standard. This can happen in several ways:

This serves as a critical warning for all employers. It is essential to review your internal documents to ensure they align with the flexible standard set by the LRA. If your policies promise a formal, court-like process, you are legally obligated to provide it, even if the law itself does not demand it. Failing to do so can make an otherwise fair dismissal procedurally unfair.

When was the last time you reviewed your employment contracts and/or disciplinary codes?

From Trial to Dialogue

The legislative shift in South Africa, clarified by judgments like Avril Elizabeth Home, was a deliberate move to transform workplace discipline.

It sought to replace legalistic theatre with a system grounded in rational decision-making, efficiency, and constructive dialogue. The focus is on getting to the substance of an issue fairly, not on perfecting a procedure. By understanding these principles, both employers and employees can engage in disciplinary processes that are less intimidating and more effective.

Knowing that the goal is dialogue and reflection, not a trial, how could your organization better handle difficult conversations about misconduct?

Contact us at Welman Attorneys Inc. if you need any assistance in reviewing your contracts with employees, your disciplinary processes and codes to ensure you do not create a legal trap for your business or company.

The post A Disciplinary Hearing is not a Trial appeared first on Welman Attorneys Inc..

Welman Attorneys Inc.

Earnings Threshold Increases to R269 600.90: A Practical Guide for Employers

Step 1: Identify Affected Employees

Step 2: Review Employment Contracts

Step 3: Revisit Fixed-Term and TES Arrangements

Step 4: Understand CCMA vs Labour Court Jurisdiction

Step 5: Seek Expert Legal Advice

Sources

South Africa’s New Earnings Threshold: What Every Employer and Employee Needs to Know

What Is the Earnings Threshold?

Which Employees Are Newly Protected?

Key Protections Under the BCEA

Implications Under the LRA and EEA

Can Existing Contracts Be Changed?

How Welman Attorneys Inc Can Help

Sources

Youth Day in South Africa and Its Connection to Labour Law

The Origin of Youth Day

Why Youth Day Matters in Modern South Africa

The Connection Between Youth Day and Labour Law

1. The Right to Fair Labour Practices

2. Protection Against Child Labour and Exploitation

3. Skills Development and Youth Employment

4. Equality and Non-Discrimination in the Workplace

Youth Day and Employer Responsibility

More Than Just a Holiday

The Legal Meaning Public Holidays in April and May in South Africa

Why Public Holidays Exist in South Africa

Freedom Day (27 April): A Constitutional Milestone

Workers’ Day (1 May): The Foundation of Labour Rights

Labour Law Implications for Employers and Employees

The Connection Between Freedom Day and Workers’ Day

How Employees Benefit from Legal Oversight in an Employer of Record Relationship

Employees Are Protected by South African Labour Law

The Complexity of EOR Employment

Legal Oversight Protects Fair Treatment

1. Proper Employment Contracts

2. Fair Disciplinary Procedures

3. Lawful Termination Processes

4. Access to Dispute Resolution

Creating Confidence in Global Employment

Why Employer of Record Providers Benefit from Working with a Labour Law Attorney

The Legal Responsibility of an Employer of Record

Key Legal Risks for EOR Providers

The Value of Proactive Legal Support

1. Contract Structuring

2. Disciplinary and Dismissal Procedures

3. Dispute Representation

4. Policy Development

Strengthening the EOR Industry

Why Companies Using an Employer of Record in SA Still Need a Labour Law Attorney

Understanding the Limits of an Employer of Record

South African Labour Law Is Complex

Legal Guidance for Global Employers

1. Structure Their EOR Relationship Correctly

2. Navigate Employee Terminations

3. Manage Employee Disputes

4. Align HR Policies With South African Law

Protecting International Growth

Applying the 2025 Code of Practice: Dismissal in Small Businesses in South Africa

1. What And Who This Guide Is For

2. Small Business Principles (2025 Code)

You do NOT need

You DO need

3. Misconduct: Step-by-Step for Small Businesses

Examples of misconduct

Step 1: Have a quick investigation

Step 2: Invite the employee to a “Misconduct Discussion”

Step 3: The meeting

Step 4: Decide on the outcome

Step 5: Give the outcome in writing to the employee

4. Performance Problems (Poor Work Performance)

Step 1: Tell them what’s wrong

Step 2: Provide guidance and training

Step 3 - Provide reasonable time to improve

Step 4: Have a follow-up meeting

Step 5: If standard are still not met

5. Probation Problems

6. Incapacity (Illness, Injury, Incompatibility)

Step 1: Identify the incapacity

Earnings Threshold Increases to R269 600.90: A Practical Guide for Employers