The new Code of Good Practice on Dismissal was issued today. It comes into effect immediately. The new code repeals and replaces the previous Code of Good Practice for Dismissal (Schedule 8 to the LRA), as well as the separately published Code of Good Practice Based on Operational Requirements.

New Provisions

The new Code introduces a number of new provisions. These include:

• Concession for small businesses. Small businesses do not have comply with obligations that are not practical or feasible for their operation. When determining the fairness of dismissals in small businesses, arbitrators will now need to consider the circumstances in which small businesses operate. The new Code recognises that  small businesses cannot reasonably be expected to engage in time-consuming investigations or pre-dismissal processes while at the same time keeping the business going.
• Guidance on dismissals in the context of industrial action. The process for an employer before considering a dismissal for misconduct in industrial action that does not comply with Chapter IV of the LRA would include:
  
  •  Contacting a trade union to inform it of the strike,
  • Affording the union an opportunity to consult with striking employees,
  • Considering representations by a union official and discuss the course of action it intends to adopt with the trade union.  

• Dismissals for operational requirements. This was previously regulated in its own code. The provisions of that Code have largely been moved into the new Code. It further introduces an annexure which sets the minimum requirements that a notice of possible retrenchments should include.

The new Code goes some way to providing clearer guidance on determining the fairness of the sanction of dismissal. It also sets out in more clear terms the requirements for probation and unsatisfactory performance after probation and includes forms of incapacity that are unrelated to ill health or injury such as incompatibility and imprisonment.

Changes to the Code of Good Practice: Dismissal is long overdue. The concession for small business is especially welcome.

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