Second Wave of Changes in the Employment Landscape

Second, a new Draft Code of Good Practice on Dismissals ("draft code"), issued in accordance with the Labour Relations Act of 1995 ("LRA"), has been published today. Among its provisions, the draft Code emphasises that the purpose of a fair procedure is to foster dialogue and reflection, affording employees an opportunity to respond to allegations of misconduct. It further stipulates that, regarding misconduct, investigations or enquiries may be informal, with their nature tailored to the specific context and size of the employer, and the frequency and severity of the misconduct in question. This approach is consistent with the decriminalisation of disciplinary processes. Click here to read our analysis of this topic. Further, the draft code underscores the importance of consistency in discipline but qualifies this by saying that inconsistency does not automatically render a dismissal unfair if the misconduct renders continued employment intolerable.

Regarding incapacity, the draft code, among other things, represents a codification of the case law that has recognised incompatibility as a form of incapacity in certain circumstances.

Moreover, the draft code includes guidelines on dismissals as a result of operational requirements—content previously absent from the existing Code of Good Practice on Dismissals and instead found under a separate Code of Good Practice on Operational Requirements. The Code contains a proposed Annexure A, and states that notices given in terms of section 189 of the LRA should be given in this form. Click here to access the published draft Code of Good Practice on Dismissals. Interest parties have 60 days (until 22 March 2025) to submit their comments to the Department of Employment and Labour.

Third, the Judge President of the Labour and Labour Appeal Courts, Judge E. Molahlehi, has issued a directive effective from 13 January 2025. This directive mandates that all Labour Courts participate in a project transitioning review applications to the Court Online system. According to the directive, upon applying for a case number for a review application, parties will be instructed by the Registrar to initiate the matter on the Court Online system. Subsequently, all pleadings must be filed in compliance with the Labour Court Rules via the Court Online system, with arbitration records also required to be uploaded. Click here to view the directive issued by the Judge President.