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Public comment on the draft Code of Good Practice on Dismissal is closed and the labour department has begun reviewing submissions.
Image for illustrative purposes. Picture: iStock
Amendments to sections of the Labour Relations Act (LRA) are in the final stages of government approval.
The Department of Employment and Labour (DEI) released the draft Code of Good Practice on Dismissal in January, with the window for public comment having closed in March.
The LRA’s sections facing amendments are Section 186(2), which covers unfair labour practices, Section 77, which regulates protests, and a repeal of Section 189A (13), which covers retrenchments.
The process of amending the LRA still needs to be presented to parliament and submitted to cabinet, but the DEL stated on Sunday that it was reviewing the comments, subject to the minister’s implementation.
The department says the amendments aim to simplify procedural fairness, limit protection during probation periods, and redefine unfair labour practice and retrenchment procedures.
Those against the amendments believe they weaken labour protections, but the DEL states they are a “pragmatic” response to unemployment.
“[The amendments] are designed to equip our economy with the tools needed for growth and to provide more South Africans with meaningful employment opportunities,” the DEL stated.
“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 department added.
The South African Federation of Trade Unions (SAFTU) has been staunchly opposed to the amendments, stating they tilted power in favour of employers.
“These amendments represent raw class warfare waged by the bosses against workers,” stated Saftu in April.
“The proposed changes represent a thinly veiled attempt to chip away at the labour protections won through heroic struggles and huge sacrifices by the working class,” they added.
However, DEL stressed that the amendments would not allow employers to arbitrarily dismiss employees, as the obligation to explore alternatives and provide opportunities for employees to improve still existed.
The department noted that urgent court applications made during retrenchment consultations often resulted in disrupted processes due to rushed litigation and undermined meaningful engagement.
“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.”
The amendment of Section 77 does place limitations on protest action while preserving union rights and the right to engage, “by providing a more suitable forum and timeline to raise procedural disputes.”
Sharusha Moodley of Bregman Moodley Attorneys Inc. explained that the draft code was revisited and built upon Schedule 8 of the LRA, with the amendment replacing the existing code.
“The draft code retains much of the spirit and structure of the original code. However, the 2025 revision aims to improve usability,” Moodley said.
She stated that enhancements included acknowledging small businesses and their unique operational needs while expanding on the original factors for determining the appropriateness of dismissal in cases of misconduct.
“It now expressly includes the actual or potential impact of the misconduct on the business and the employee’s response, including any acknowledgement of wrongdoing and expressed willingness to adhere to rules in future,” Moodley told The Citizen.
Other changes alter probation periods to allow employers to assess a new employee’s suitability, instead of simply assessing performance.
The amendments will include imprisonment or incompatibility in the definition of incapacity, as well as include a section on dismissals for operational requirements.
Moodley explained dismissals for operational requirements were previously absent from the code and governed separately under the LRA.
“It now outlines the principles of substantive and procedural fairness, aligning with section 189 of the LRA and includes a template that should be used when an employer contemplates retrenchment under Section 189(3) of the LRA.
“[Additionally], there is expanded guidance on poor performance that certain senior employees may not require formal warnings before dismissals,” Moodley explained.
The Commission for Conciliation, Mediation and Arbitration (CCMA) has been a safety net for disgruntled employees, but Moodley said it was too early to gauge the amendment’s effect on the CCMA.
“Employers and HR professionals should begin familiarising themselves with the draft code’s provisions and consider how these changes may affect internal policies and procedures. However, it is too soon to assess the impact on the efficiency of the CCMA,” advised Moodley.
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