On September 4, 2025, significant amendments to South Africa’s Code of Good Practice on Dismissals came into effect—the first changes to Schedule 8 of the Labour Relations Act since its inception in 1995. While these amendments have generated considerable discussion in HR circles, the most important message is this: the law hasn’t fundamentally changed.
These amendments represent a codification of existing case law rather than radical legal reform. Over the past three decades, South African courts have developed and refined employment law through their judgments, interpreting the original code and the various LRA amendments. What has now been formalized in Schedule 8 reflects what practitioners, courts, and tribunals have already been applying.
This means employers who have been following sound employment practices based on current case law should find themselves well-positioned to comply with the amended code. There’s no need for panic—just an opportunity to understand what’s now been written down clearly for everyone to reference.
One of the most discussed aspects of the amendments is the explicit recognition of small business circumstances. The code now states that small businesses should not be expected to comply with obligations that are impractical or unreasonable for their operations. However, this has been widely misinterpreted.
Small businesses are not exempt from following fair procedures. The golden thread of fairness remains unchanged: employees must know what they’re responding to, must be given a fair opportunity to respond, and must be allowed assistance from a colleague or shop steward. What differs is the manner in which procedural fairness is achieved.
A small family business cannot be expected to have the same formal infrastructure as a large corporation with dedicated HR departments. The code recognizes this reality. Procedural fairness will be judged objectively, taking into account the resources available within the business. The process may be less formal, but it must still be fair.
The amended code reinforces the principle of progressive discipline when dealing with misconduct. Two important factors have been added to consider when determining appropriate sanctions: the importance of the rule or standard in the workplace, and the actual or potential harm caused by the contravention.
Perhaps most significantly, the code clarifies that consistency doesn’t mean identical treatment. When two employees participate in the same misconduct, different sanctions may be appropriate based on their individual circumstances, including length of service, disciplinary record, and the effect dismissal would have on each person. This isn’t unfairness—it’s applying the law properly by considering each case on its merits rather than using a cookie-cutter approach.
The amendments explicitly recognize mental health as grounds for incapacity, alongside physical ill health or injury. While courts have applied this principle for years, having it written in the code provides clarity for all employers and employees.
Additionally, the code now recognizes other forms of incapacity beyond health issues—circumstances where employees are prevented from performing their duties through no fault of their own. Examples include imprisonment or expired work permits for foreign workers. The code also confirms incompatibility—an employee’s inability to work harmoniously with the business culture or colleagues—as a form of incapacity.
A critical point that bears repeating: deciding not to confirm an appointment during or on expiration of the probation period is a dismissal. This requires both procedural and substantive fairness. Employers cannot simply state they’re “not confirming” someone’s appointment without following proper process. The employee must be given an opportunity to make representations, and the employer must consider those representations before making a decision.
The separate Code of Good Practice on Dismissal Based on Operational Requirements has been incorporated into the main code, creating a single, consolidated document. The language is clearer, using “retrenchment” rather than the technically correct but less accessible “operational requirements.”
An important clarification: employers must proactively drive the process of finding alternatives to retrenchment. The onus cannot be placed on employees to identify alternative positions or solutions to avoid the need to retrench. Employers must take appropriate steps of their own initiative to avoid retrenchments where reasonably possible.
The tone throughout the amended code emphasizes collaboration over confrontation. Employment law exists to facilitate sound business practices and healthy employment relationships, not to be punitive. This represents a welcome reset to the original intentions of the Labour Relations Act—keeping processes simple, accessible, and focused on fairness rather than technicality.
For employers, the amendments offer an opportunity to review current practices against a clearer, more accessible standard. The simplified language and logical structure make the code easier to apply, particularly for those without specialized employment law expertise.
The key takeaway is straightforward: if you’ve been following fair, reasonable practices based on sound employment law principles, these amendments should simply confirm you’re on the right track. The law recognizes that fairness looks different across different organizations, but the fundamental requirement for procedural and substantive fairness remains constant.
Understanding these amendments isn’t about learning entirely new rules—it’s about recognizing in writing what sound employment practice has always looked like in South Africa.
On September 4, 2025, significant amendments to South Africa’s Code of Good Practice on Dismissals came into effect—the first changes to Schedule 8 of the Labour Relations Act since its inception in 1995. While these amendments have generated considerable discussion in HR circles, the most important message is this: the law hasn’t fundamentally changed.
These amendments represent a codification of existing case law rather than radical legal reform. Over the past three decades, South African courts have developed and refined employment law through their judgments, interpreting the original code and the various LRA amendments. What has now been formalized in Schedule 8 reflects what practitioners, courts, and tribunals have already been applying.
This means employers who have been following sound employment practices based on current case law should find themselves well-positioned to comply with the amended code. There’s no need for panic—just an opportunity to understand what’s now been written down clearly for everyone to reference.
One of the most discussed aspects of the amendments is the explicit recognition of small business circumstances. The code now states that small businesses should not be expected to comply with obligations that are impractical or unreasonable for their operations. However, this has been widely misinterpreted.
Small businesses are not exempt from following fair procedures. The golden thread of fairness remains unchanged: employees must know what they’re responding to, must be given a fair opportunity to respond, and must be allowed assistance from a colleague or shop steward. What differs is the manner in which procedural fairness is achieved.
A small family business cannot be expected to have the same formal infrastructure as a large corporation with dedicated HR departments. The code recognizes this reality. Procedural fairness will be judged objectively, taking into account the resources available within the business. The process may be less formal, but it must still be fair.
The amended code reinforces the principle of progressive discipline when dealing with misconduct. Two important factors have been added to consider when determining appropriate sanctions: the importance of the rule or standard in the workplace, and the actual or potential harm caused by the contravention.
Perhaps most significantly, the code clarifies that consistency doesn’t mean identical treatment. When two employees participate in the same misconduct, different sanctions may be appropriate based on their individual circumstances, including length of service, disciplinary record, and the effect dismissal would have on each person. This isn’t unfairness—it’s applying the law properly by considering each case on its merits rather than using a cookie-cutter approach.
The amendments explicitly recognize mental health as grounds for incapacity, alongside physical ill health or injury. While courts have applied this principle for years, having it written in the code provides clarity for all employers and employees.
Additionally, the code now recognizes other forms of incapacity beyond health issues—circumstances where employees are prevented from performing their duties through no fault of their own. Examples include imprisonment or expired work permits for foreign workers. The code also confirms incompatibility—an employee’s inability to work harmoniously with the business culture or colleagues—as a form of incapacity.
A critical point that bears repeating: deciding not to confirm an appointment during or on expiration of the probation period is a dismissal. This requires both procedural and substantive fairness. Employers cannot simply state they’re “not confirming” someone’s appointment without following proper process. The employee must be given an opportunity to make representations, and the employer must consider those representations before making a decision.
The separate Code of Good Practice on Dismissal Based on Operational Requirements has been incorporated into the main code, creating a single, consolidated document. The language is clearer, using “retrenchment” rather than the technically correct but less accessible “operational requirements.”
An important clarification: employers must proactively drive the process of finding alternatives to retrenchment. The onus cannot be placed on employees to identify alternative positions or solutions to avoid the need to retrench. Employers must take appropriate steps of their own initiative to avoid retrenchments where reasonably possible.
The tone throughout the amended code emphasizes collaboration over confrontation. Employment law exists to facilitate sound business practices and healthy employment relationships, not to be punitive. This represents a welcome reset to the original intentions of the Labour Relations Act—keeping processes simple, accessible, and focused on fairness rather than technicality.
For employers, the amendments offer an opportunity to review current practices against a clearer, more accessible standard. The simplified language and logical structure make the code easier to apply, particularly for those without specialized employment law expertise.
The key takeaway is straightforward: if you’ve been following fair, reasonable practices based on sound employment law principles, these amendments should simply confirm you’re on the right track. The law recognizes that fairness looks different across different organizations, but the fundamental requirement for procedural and substantive fairness remains constant.
Understanding these amendments isn’t about learning entirely new rules—it’s about recognizing in writing what sound employment practice has always looked like in South Africa.
