The 2025 Code of Good Practice on Dismissal: What Changed and Why It Matters

Dismissals are one of the most fraught interactions between employer and employee. A decision that goes wrong can damage careers, reputations, and trust. On 4 September 2025, the South African government gazetted a new Code of Good Practice on Dismissal, officially replacing the older Schedule 8 Code and the separate Code on operational dismissals.

This new Code doesn’t throw out the old principles — conduct, capacity (i.e. ability), and operational requirements remain the foundational grounds. What it does is bring clarity, much more detailed guidance, and better alignment with recent case law and workplace realities.

If you’re an employee, a manager, or just someone who wants to know their rights, this new Code affects you. Here’s what’s new, what stays, and how you should act.

Why this update was needed

Over time, South Africa’s courts have shaped dismissal law through judgments and precedents. Some of those principles were implicitly accepted, even though they weren’t in the old Code. The result: ambiguity. Employers found themselves guessing which standard to follow. Employees sometimes got caught in unfair processes because the Code was vague.

The government set out to modernise and codify what the courts had decided. The new Code is meant to bring the law and practice closer together, reduce friction, and make things more predictable.

One big improvement: the new Code acknowledges practical constraints faced by small employers. It allows for more flexibility so that dismissals aren’t bogged down in excessive formalities where they make little sense.

The bottom line: this update doesn’t shift the dismissal grounds radically, but it tightens the rules and makes them more accessible and current.

Key changes in the 2025 Code

Below are the biggest changes, especially ones you’ll want to know whether you’re an employee or employer.

1. One unified Code, clearer structure

Instead of multiple dismissal-related codes, all dismissal rules and guidance are now in one Code. This consolidation helps with consistency and removes overlap.

2. More room for simplified processes for small employers

Small businesses often lack specialist HR teams, and running long investigations or formal hearings may be unrealistic. The new Code explicitly permits less formal, simplified procedures when justified by the context—provided they are fair and justifiable. But “simplified” doesn’t mean “no fairness.” Even an informal process must allow the employee to respond, get notice, and understand the case against them.

3. Probation gets a broader role

Under the new rules, probation is no longer just about performance. It includes suitability—how well someone fits the role, workplace culture, attitude, and conduct. That means an employer may consider incompatibility or attitude during probation, not only outputs.

Also, the Code discourages constant extensions of probation to avoid confirming employment. That kind of trickery can now itself be seen as unfair.

4. Incapacity expanded: more than just ill health or poor performance

The old Code and the LRA focused incapacity dismissals on health or inability to perform tasks. The new Code includes incompatibility (when someone cannot work in harmony with a team or culture) and even imprisonment in certain circumstances, as forms of incapacity.

But introducing these new categories doesn’t mean an employer can dismiss willy-nilly. The Code clarifies that alternatives, accommodations, and support should be considered before dismissal.

5. Misconduct rules are more detailed

The new Code spells out factors that employers (and CCMA commissioners) must consider when assessing whether misconduct justifies dismissal:

• Was there a valid rule that the employee knew or should have known?

• Was the rule reasonable and necessary for workplace order?

• Was the breach serious (harm caused or potential harm)?

• Was dismissal a proportional response?

• Was consistency with prior disciplinary decisions maintained, or was there justification for deviation?

• Did the employee get a real opportunity to respond?

• Was a less severe sanction possible?

The emphasis is now stronger on dialogue, reflection, and fairness before dismissing.

One thing worth noting: the new Code allows deviation from formal procedural steps in exceptional circumstances, but the employer must justify why it deviated.

6. Retrenchment and operational requirements are integrated

Previously, operational dismissals (retrenchments) had a separate Code. Now they are fully part of the dismissal Code. The new Code adds guidance on:

• What a Section 189(3) notice must contain when retrenchment is being considered

• How to conduct consultation in good faith

• What objective selection criteria should be used

• How to explore alternatives to retrenchment

• How to apply fair severance and re-employment preferences

The goal is transparency, accountability, and less arbitrary retrenchment.

7. Emphasis on documentation, evidence, and consistency

With more detailed rules comes more expectation around records. Employers are now under stronger pressure to keep clear, contemporaneous records of warnings, investigations, hearings, consultations, and decision rationales. In disputes, the ability to show your steps will matter even more.

Consistency is no longer optional. While the new Code allows justified deviation, unjustified inconsistent outcomes between employees could undermine a dismissal.

8. Procedural rights remain, but with clarity

The new Code retains foundational procedural rights: the employee must:

• Be informed in writing of the allegations

• Be given a reasonable opportunity to respond

• Be represented (where appropriate, union or fellow employee)

• Have disclosure of relevant evidence

• Be allowed to present their case

But the Code also gives guidance on language accommodation (i.e. giving the employee info in a language they understand if reasonable) and stresses that procedural fairness can flex depending on context.

What this means for employees

If you are working (or expect to work under employment), here’s what you should know and how to act under this new Code.

Know your right to fairness

Just because a dismissal is lawful under contract or statute doesn’t mean it’s fair under the new Code. You have a statutory right to process fairness and reasonableness of the employer’s decision. If either substantive or procedural fairness fails, the dismissal may be challenged at the CCMA or bargaining council.

Understand the ground

If you are dismissed, ask: on which ground (misconduct, incapacity, operational requirements)? Make sure the employer gives you that in writing with sufficient detail so you understand what they say you did wrong (allegations) or where your performance was lacking. If that’s vague, challenge it.

Exercise your right to respond

Don’t treat the employer’s case as fixed. The Code guarantees you a chance to respond. Use that. Submit your side, raise alternative explanations, ask for documentation, ask for clarification. A weak dismissal case often collapses at this stage.

Ask for full disclosure

You should get relevant evidence and documents. Without them, you can’t properly defend or respond. If your employer withholds, that is a red flag. If the matter goes to arbitration, that failure may weigh heavily against the employer.

Check consistency

If others in similar circumstances were disciplined less harshly, ask why. Inconsistent treatment may be relevant unless there’s strong justification for the difference.

Use internal dispute channels first (if available)

If your company has an internal grievance or appeal process, use it. It shows you attempted resolution before taking legal route. Many arbitrators expect that.

Time is of the essence

If you believe your dismissal was unfair, lodge your case with the CCMA or bargaining council promptly. Don’t let the statute of limitations or deadlines expire.

What this means for employers (especially HR / managers)

You’ve got homework to do. The new Code raises the bar for dismissal procedures.

Update your policies and discipline codes

Go through your internal disciplinary code, employment contracts, and HR manuals. Replace references to the old Code or Schedule 8 with the new Code. Make sure your rules (misconduct, performance standards, incapacity, retrenchment rules) are clear, reasonable, and consistent with the new Code.

Train managers and decision-makers

Those who make dismissal decisions have to know the new rules: what is “reasonable,” how to run a fair process, how to justify deviations, how to document, how to consult. Mistakes at the outset cost a lot.

Document everything — from day one

Warnings, investigations, meetings, letters, notes, correspondence: keep them. If a dismissal is challenged, the quality of your records can make or break your case.

Ensure fairness even when you simplify

If you’re a small employer and opt for a simpler process, make sure the essence of fairness is intact: notice, chance to respond, representation, reasonability. Be ready to explain your approach.

Be mindful of consistency but not rigid

Fairness requires consistency, but real life may justify differentiation. If you treat two similar misconducts differently, have a clear rationale (seniority, damage caused, cooperation, mitigation).

In retrenchments, engage deeply

Don’t skirt the consultation. Offer alternatives, be transparent with criteria, disclose the rationale, explore redeployment, provide severance, and offer re-employment where possible.

Watch the standard of deviation carefully

The Code allows deviation from formal procedure in exceptional cases, but you must justify it. Don’t assume you can skip steps just because it’s convenient.

Some common questions answered

Can someone still be dismissed on the spot (instant dismissal)?
Yes — but only for very serious misconduct where the nature of the act makes continued employment intolerable (for example, gross theft, violence). Even then, the new Code demands a fair process as far as possible under the circumstances.

Must every dismissal follow a hearing?
Not necessarily. The new Code allows informal processes in some instances — but only when justified. A formal hearing is still often best practice, especially in higher stakes matters.

If I’m under probation, can I be dismissed more easily?
Yes, the evidentiary threshold is somewhat lower in probation periods. But that doesn’t mean no process. You still must give notice, an opportunity to respond, explain your reasoning, and treat probation fairly.

How much notice must be given?
Notice periods still depend largely on contract or BCEA rules, but the new Code expects reasonable timing in dismissal processes, response windows, and consultations.

Can you deviate from procedure?
Yes, in exceptional, justified circumstances — but deviation must be explained, documented, and proportionate. It is not a free pass.

Hypothetical examples to make this real

Example 1: Misconduct in a retail store

Thandi works at a clothing store. She’s caught using a coworker discount for her own family shopping without permission. Under the old code, the employer gave her a warning, asked for written statement, and later dismissed her for repeat misconduct.

Under the new Code, the employer must show that the rule was known and reasonable, that the harm or potential harm is significant, and whether a less serious sanction might have sufficed. Thandi must have had the chance to respond. If the employer skipped telling her the allegation in writing, or didn’t allow her to answer, or disciplined another employee more mildly without explanation, Thandi could challenge the dismissal.

Example 2: Poor performance in a programming role

Sipho’s coding has lagged. His tasks are delayed, bugs abound. Under the new Code, the employer must show that tasks were reasonable, that Sipho had training or support, an opportunity to improve, clear standards, and that dismissal was proportionate. Suppose Sipho is a senior developer. In that case, the employer might not need to issue multiple warnings if Sipho’s role implies higher standard of accountability — as long as due process is followed.

Example 3: Retrenchment at a small business

A small café with limited capital must cut staff. Under the new Code, because the employer is small, they may adopt a less formal process. Yet they must still issue a Section 189(3) notice, consult meaningfully, share selection criteria, and explore alternatives. Suppose they pick staff arbitrarily—without justifying criteria or documentation—that could make the retrenchment unfair.

Final thoughts: The path forward

The 2025 Code of Good Practice on Dismissal brings South African dismissal law closer to how workplaces already operate. It introduces clarity, encourages fairness, and acknowledges that one size does not always fit all. But make no mistake: the new demands are higher.

For employees, the new Code gives you sharper tools to hold employers to account. Be methodical, ask for proper procedure, and assert your rights early.

For employers, this is a moment to get your HR house in order. Revise your policies, train your decision-makers, keep detailed records, and treat every dismissal as a delicate operation, not a routine admin task.

If any dismissal process comes your way, don’t go in blind. Know the new rules. Prepare your case or your defence. The law now makes that a necessity rather than a luxury.