Employment and Labour provides facts on Code of Good Practice on Dismissal and Labour Law Amendments

The Department of Employment and Labour has undertaken significant Labour Law Reforms, focusing on several key areas: Simplification of Procedural Fairness, Limiting Protection During Probation, Redefinition of Unfair Labour Practice, and Retrenchment Procedures. The Minister has presented progress reports on these amendments to the Cabinet multiple times.

The recent amendments to the Code of Practice on Dismissals and labour laws are a strategic and necessary response by the Government to the persistently high levels of unemployment in our country. These changes aim to combat unemployment, which is the primary contributor to poverty and inequality in South Africa.

Contrary to claims that these changes weaken labour protections, they are designed to equip our economy with the tools needed for growth and to provide more South Africans with meaningful employment opportunities. These amendments represent a pragmatic and inclusive response to a national crisis affecting us all.

These changes were developed with the involvement of organised labour and reflect a mutual commitment to addressing the economic crisis confronting millions of unemployed South Africans. The Draft Code of Good Practice: Dismissal does not address employees who have been employed for three months or new job seekers, nor does it allow employers, including small businesses, to dismiss workers without a fair reason or procedure, regardless of how recently they were hired. While it allows flexibility in applying procedures to account for the limited resources of small businesses, it still requires that dismissals be based on legitimate reasons and that employees be treated fairly, given an opportunity to respond, and not dismissed arbitrarily.

The Code promotes fairness in all dismissals, with appropriate flexibility for small employers, without compromising the fundamental rights of workers. Any dismissal that is not based on a fair reason and conducted through a fair, even if simplified, process remains subject to challenge under labour law. The Code does not permit employers to dismiss someone simply because they do not like them or because they raise their voice for justice. Incapacity in this context refers to a worker who, over time, proves unable to work harmoniously with others or with the essential culture of the organisation. It is not about challenging your boss; it is about repeated breakdowns in teamwork, collaboration, or destructive behaviour that undermines others' ability to do their jobs. Even then, the employer cannot simply dismiss the worker. The Code demands a full assessment, exploration of alternatives, and an opportunity for the worker to respond and improve.

The proposed three-month qualifying period was agreed upon between Organised Labour and the Government. This contrasts with the twelve months proposed by Business and the six months initially proposed by the Government. Probation is already part of the legal framework; these amendments simply clarify how it applies to new job entrants, not existing employees.

The proposal does not remove all protections for new workers. Even during the qualifying period, employees remain fully protected against automatically unfair dismissals, including discrimination, union activity, whistleblowing, and other rights guaranteed by the Constitution and labour law. These core protections apply from day one, including the employer providing a reason for dismissal.

One of the biggest hurdles in growing employment has been the difficulty businesses face when hiring first-time workers. Employers are understandably cautious about taking on young, inexperienced candidates due to the legal risks and costs of dismissing someone for incompatibility.

The amendments address this challenge by allowing employers to assess whether a new hire is suitable, without compromising on basic worker rights. This approach encourages job creation while ensuring that only new job seekers, not current workers, are affected.

Finally, the qualifying period is not a free pass. It is limited to three months unless a longer period is reasonable and operationally justifiable in terms of the employment contract. This ensures transparency and fairness while giving employers room to support new entrants into the job market.

The repeal of section 189A (13) does not remove the right to challenge procedural unfairness but restores balance by allowing such challenges to be brought more effectively after the retrenchment, through ordinary unfair dismissal proceedings. Urgent court applications during consultations have often led to rushed litigation, disrupted processes, and undermined meaningful engagement between employers and employees, placing form over substance.

The proposed amendments preserve employee and union rights by providing a more suitable forum and timeline to raise procedural disputes, consistent with how other dismissals are handled. This supports proper consultation without the pressure of urgent interdicts, while still holding employers accountable.

Where bad faith or serious procedural flaws occur, legal remedies remain available under general labour law and constitutional protections. The shift is a corrective step, intended to reduce unnecessary litigation, support genuine consultation, and uphold fairness more effectively.

Therefore, the change is not about silencing labour but about enabling better, post- dismissal scrutiny that promotes real dialogue and procedural integrity.

The proposed amendments to section 186(2) of the Labour Relations Act are not an attack on workers’ rights but a necessary step towards a clearer, more focused labour dispute system. The intention is to reduce unnecessary legal disputes over management decisions like promotions, demotions, and benefits—areas already protected through collective agreements, contract law, and Employment Equity legislation.

Workers will still be able to challenge unfair treatment, particularly where discrimination or breaches of agreement are involved. What is being removed is not protection, but confusion and duplication, allowing the CCMA and Labour Courts to prioritise serious labour violations. This creates a balanced labour framework that respects workers' dignity while ensuring that the system remains effective, accessible, and fair for all.

The amendment to Section 77 introduces a 24-month validity period for certificates issued by NEDLAC authorising protest action on socio-economic issues. This revision is both practical and progressive, ensuring that protest action remains relevant, justified, and reflective of current socio-economic realities. A renewed referral to NEDLAC after two years helps ensure that protest actions are based on up-to-date information and genuinely reflect current worker and societal concerns.

Previously, once a certificate was issued, it could be used indefinitely, regardless of how much time had passed or whether the issue had evolved. This practice weakened the legitimacy of protest actions and bypassed the vital role of NEDLAC as a platform for engagement and problem-solving, which promotes dialogue and the resolution of disputes. The amendment fosters accountability and reaffirms the value of constructive negotiation.

Critically, the right to engage in Section 77 protest remains untouched. Workers can still take action against socio-economic injustices. The only change is that this action must be rooted in recent efforts to resolve the issue through dialogue.

At this stage, the amendment to the code of good practice process has reached the point where the public comment period has closed. The Department is currently collating the received comments for the Minister's review. Following the Minister's consideration, the next step for the code of good practice will be for the Minister to publish the amendments for implementation.

The process for amending the Labour Relations Act (LRA) is still to be scheduled for presentation to Parliament, followed by submission to the Cabinet.

Enquiries
Teboho Thejane
Departmental Spokesperson
Cell: 082 697 0694
E-mail: teboho.thejane@labour.gov.za 

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