The proposed Draft Code on Good Practice on Dismissal

 


The proposed Draft Code on Good Practice on Dismissal has sparked strong opposition from trade unions while receiving cautious approval from legal experts. The key debate revolves around whether the new code provides necessary flexibility for businesses or erodes workers' rights.

Key Concerns from Trade Unions (GIWUSA & SAFTU)

  1. Greater Employer Flexibility: The code allows employers more leeway in handling dismissals, particularly regarding probationary employees and procedural requirements.

  2. Less Formal Disciplinary Processes: Particularly for small businesses, reducing their obligation to have formal disciplinary procedures.

  3. Expansion of Incapacity Grounds: New provisions include supervening impossibility (e.g., imprisonment) and incompatibility, which could lead to more dismissals.

  4. Risk of Procedural Unfairness: Lack of clear definitions for what constitutes a small business and what "less formal" means.

  5. Involvement in Nedlac Negotiations: GIWUSA claims it was excluded from key discussions, alleging that trade union bureaucracies acted in a way that compromised workers' interests.

Key Takeaways from Legal Experts

  1. Code Does Not Override LRA: The Labour Relations Act remains in effect, and this code serves as guidance rather than law.

  2. More Clarity in Some Areas: The draft expands on existing laws, particularly in misconduct dismissals and unprotected strikes, adding factors for fairness.

  3. Concerns Over Ambiguity: The undefined “less formal” approach for small businesses could lead to procedural inconsistencies.

  4. Shift in Misconduct Language: The draft does not explicitly state that dismissal should not be the first option, which could be seen as a pro-employer shift.

  5. Proof of Intolerability: Employers must prove not just serious misconduct but also that continued employment is intolerable, which raises the burden of proof for employers.

My Take on the Changes

  • Flexibility vs. Fairness: Employers struggle under the current system, as seen in the high percentage (80-90%) of CCMA cases lost by employers. Greater flexibility could help businesses, particularly small ones, but it must not come at the cost of due process and worker protection.

  • Small Businesses & Compliance: While it's practical to ease procedural burdens on smaller businesses, not requiring them to have clear written rules could lead to inconsistent and unfair disciplinary actions.

  • Unprotected Strikes Protections: The additional factors in Section 12 protecting employees from immediate dismissal for unprotected strikes are a positive step.

  • Greater Employer Discretion = Potential for Abuse: Some changes, such as expanded incapacity grounds and probation flexibility, could be exploited by bad-faith employers.

Final Thoughts

While the draft code clarifies and expands on existing dismissal practices, it introduces significant risks for workers if not properly defined and implemented. The lack of clear definitions, the risk of inconsistent application, and the absence of union consensus raise concerns about potential abuses by employers. The high failure rate of employers at the CCMA suggests that many do not even understand the current system, so further clarity, not just flexibility, is required.

If this draft moves forward, it must ensure that flexibility for employers does not come at the cost of procedural fairness and worker protection.

Leslie

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