Labour Law Changes 2025: What is Dismissal due to Incapacity?

Incapacity Definition:

(noun)  “physical or mental inability to do something or to manage one’s affairs.”

The new code expands the definition of incapacity to take into account instances unrelated to injury/ ill health, that would render an employee incapable of performing their duties, such as imprisonment,

 

Dismissal for Temporary Incapacity

Incapacity on the grounds of mental or physical ill health or injury may be permanent or temporary.

When temporary, employers should investigate the extent of the incapacity, and alternatives to dismissal, taking into account the following considerations:-

  1. If the employee will be absent for an unreasonably long period of time
  2. The nature of the job
  3. Seriousness of the illness or injury
  4. The possibility of securing a temporary replacement for the ill/ injured employee.
  5. If the employee was injured at work, or their illness is work-related.

 

Dismissal for Incapacity due to Incompatibility

“An employee’s incompatibility, as manifested by an inability to work in harmony with an employers business culture or with fellow employees, can constitute a form of incapacity which may justify dismissal.”  21.7

 

Download a copy of the New Code of good conduct on Dismissals 040925 here.

The information on this blog is for general informational purposes only and does not constitute legal advice. It is not a substitute for professional legal counsel, and you should consult with a qualified legal professional for advice tailored to your specific situation.

Labour Law Changes 2025: Probation Periods

Probation periods are back and official!

(not that they were ever gone and illegal)

Clarification on Probation

Section E of The New Code focuses on various aspects of probation, stating that an employer may require a newly hired employee to serve a period of probation, before the employee’s appointment is confirmed.

The purpose of probation is to give the employer the opportunity to evaluate the employee’s performance and suitability for employment before confirming the employment.  It should not be used for the purpose of depriving the employee of the status of permanent employment.

The duration of the probation period should be determined in advanced, and be of a reasonable duration.  Factors influencing the duration of the probation period would be the nature of the job and the time the employer will require to determine the employees suitability.

When and how to end Probation Periods

An employer may only decide to dismiss an employee or extend the probationary period after the employer has given the employee the opportunity to make representations and the employer has considered these representations.

When fairly deciding to end a probation period- either during or at the end- the employer should take into account the reason for the probationary period, and these reasons can be less compelling than if the employee had completed the probationary period.

Guidance on Dismissals for Poor Work Performance

Before dismissing an employee who is not meeting the required performance standards, the following should be taken into account:-

  1. If the employee was aware of the required performance standard
  2. If the employee was given a fair opportunity to meet the performance standard
  3. The performance standard was reasonably achievable
  4. Dismissal is a fair sanction for not meeting the standard.

You don’t necessarily have to warn an employee that if their performance does not improve, they might be dismissed.

“Depending on the circumstances, an employer may not be required to warn an employee that if their performance does not improve, they may be dismissed.  This may be the case for managers and senior employees whose knowledge and experience enable them to judge whether their performance is adequate and employees with a high degree of professional skills where a departure from that high standard would have caused severe consequences justifying dismissal.”

The new code clarifies expectations for probation, requiring it to be of a reasonable duration and discouraging repeated extensions to avoid confirming employment.

Download a full copy of the New Code of Practice: Dissmals here (New Code of good conduct on Dismissals 040925)

The information on this blog is for general informational purposes only and does not constitute legal advice. It is not a substitute for professional legal counsel, and you should consult with a qualified legal professional for advice tailored to your specific situation

Know Your Rights: What is the purpose of Disciplinary Action?

What is the Purpose of

Disciplinary Measures?

The purpose of taking disciplinary action is not necessarily dismissal for misconduct, but rather so that employees can know and understand what standards are expected of them, and to guide their behaviour to meet these standards.

The purpose of the Disciplinary process should be corrective.

Disciplinary rules and procedures can vary from company to company, depending on the size and nature of the business.

Not all rules have to be written down- some rules and standards may become so well established and accepted, that it is not necessary to communicate them.

Consistency and certainty in applying discipline is important for fairness.

Smaller employers may adopt a less formal approach to disciplinary matters.

Download a full copy of the New Code of good conduct on Dismissals 040925

The information on this blog is for general informational purposes only and does not constitute legal advice. It is not a substitute for professional legal counsel, and you should consult with a qualified legal professional for advice tailored to your specific situation

 

Labour Law Changes 2025: What is a Fair Dismissal?

What is a fair dismissal? What is a fair punishment for an employment offense?

What is Fair Dismissal?

A dismissal is considered fair, if it is for a fair reason, and in accordance with fair procedure.

There are 3 grounds for fair dismissal:

  1. The conduct of the employee
  2. The capacity of the employee
  3. Operational Requirements (retrenchment)

Dismissals are automatically unfair if:

  1. The dismissal infringes the rights of employees and trade unions
  2. The reason is listed in section 187 (including but not limited to participation in a protected strike, pregnancy or acts of discrimination.)

How do you determine a fair sanction when a rule is broken or a standard is not met?

  1. Was the rule/ standard reasonable?
  2. Was the employee aware of, or can reasonably be expected to be aware of, the rule/ standard?
  3. The importance of the rule/ standard in the workplace
  4. The harm or damage caused by the contravention
  5. Whether the rule/ standard has been consistently applied in the past.

The Importance of Consistency in Dismissals

As a general rule, the employer should apply the sanction of dismissal in the same way in which it has been applied to other employees in the past, and consistent as between two or more employees who participate in the same misconduct under consideration.  Consistency is a key factor to be considered in assessing the fairness of dismissal.  However, inconsistency does not necessarily mean that the dismissal is unfair if the misconduct renders the continuation of the employment intolerable.

Download a full copy of the New Code of good conduct on Dismissals 040925

The information on this blog is for general informational purposes only and does not constitute legal advice. It is not a substitute for professional legal counsel, and you should consult with a qualified legal professional for advice tailored to your specific situation

Labour Law Changes 2025: Focus on Small Business

Labour Law Relief for Small Businesses

Focus on Small Businesses

The new code includes a dedicated section (Part A) with specific provisions to accommodate the practical realities of small businesses, including less formal procedures while still requiring fairness and documentation.

It states that Small Businesses should not be required to comply with obligations that are not practical or feasible for their operation.

When determining if a small business operated fairly when dismissing, the unique circumstances in which they operate should be taken into consideration.

For example, small businesses cannot reasonably be expected to engage in time-consuming investigations and pre-dismissal processes, while at the same time keeping the business going.

The new code brings attention to the fact that small businesses may not have an HR Department, staffed with people with the skills and experience in dismissals, and this should be taken into account when determining fairness.

Download a copy of the New Code of good conduct on Dismissals 040925 here.

The information on this blog is for general informational purposes only and does not constitute legal advice. It is not a substitute for professional legal counsel, and you should consult with a qualified legal professional for advice tailored to your specific situation.

Know Your Rights: Calculation of salaries & wages

How much should I be remunerating my Employees?

(1)  An employee’s wage is calculated by reference to the number of hours the employee ordinarily works.

 

(2)  For the purposes of calculating the wage of an employee by time, an employee is deemed ordinarily to work:

(a) 45 hours in a week, unless the employee ordinarily works a lesser number of hours in a week;

(b) nine hours in a day, or seven and a half hours in the case of an employee who works for more than five days a week, or the number of hours that an employee works in a day in terms of an agreement concluded in accordance with section 11, unless the employee ordinarily works a lesser number of hours in a day.

 

(3)  An employee’s monthly remuneration or wage is four and one­ third times the employee’s weekly remuneration or wage, respectively.

 

(4)  If an employee’s remuneration or wage is calculated, either wholly or in part, on a basis other than time or if an employee’s remuneration or wage fluctuates significantly from period to period, any payment to that employee in terms of this Act must be calculated by reference to the employee’s remuneration or wage during:

(a) the preceding 13 weeks; or

(b) if the employee has been in employment for a shorter period, that period.

 

(5)  (a)  The Minister may by notice in the Gazette, after consultation with the Commission and NEDLAC, determine whether a particular category of payment, whether in money or in kind, forms part of an employee’s remuneration for the purpose of any calculation made in terms of this Act.

(b)  Without limiting the Minister’s powers in terms of paragraph (a), the Minister may—

(i) determine the value, or a formula for determining the value, of any payment that forms part of remuneration;

(ii) place a maximum or minimum value on any payment that forms part of remuneration; and

(iii) for the purposes of any calculation, differentiate between different categories of payment and different sectors.

(c)  Before the Minister issues a notice in terms of paragraph (a), the Minister must—

(i) publish a draft of the proposed notice in the Gazette; and

(ii) invite interested parties to submit written representations on the draft notice within a reasonable period.

 

The New Code of Practice: Dismissals

The new Code of Good Practice on Dismissal came into effect in South Africa on 4 September 2025, replacing previous codes and unifying dismissal procedures for misconduct, incapacity, and operational requirements into a single framework.

This updated code aims for a more practical, streamlined process, offering increased flexibility for small businesses while maintaining protections for employees.

Key changes include a new dedicated small business section and the consolidation of previously separate guidelines for dismissal categories into one unified document.

Purpose & Interpretation

Instead of separate codes for misconduct, incapacity, and operational requirements (retrenchment), all are now governed by a single, integrated Code of Good Practice.

Its purpose is to provide guidance to employers, employees, trade unions, and persons applying the code on their legal obligations.

The code is intentionally general, acknowledging that each case is unique.

The code now acknowledges that different approaches to dismissals may be warranted, in different environments.  An example would be large companies, to companies that employ only one or two people.

The key principle behind the Code of Practice on Dismissals is Employers and Employees should treat one another with mutual respect.  The code places a premium on:

  • Employment justice
  • Efficient operation of the employer’s business
  • Speedy resolution of disputes.

It acknowledges that while employees should be protected, employers are entitled to satisfactory and work performance by their employees.

The new code aims to be easier to understand, using more common terms like “retrenchment” over “dismissal for operational requirements”.

Download a full copy of the Code here: New Code of good conduct on Dismissals 040925.

The information on this blog is for general informational purposes only and does not constitute legal advice. It is not a substitute for professional legal counsel, and you should consult with a qualified legal professional for advice tailored to your specific situation. 

Know Your Rights: Legally, what should employee personnel files contain?

What employment records must Employers keep, and for how long?

1)  Every employer must keep a record containing at least the following information:

(a) The employee’s name and occupation;

(b) the time worked by each employee;

(c) the remuneration paid to each employee;

(d) the date of birth of any employee under 18 years of age; and

(e) any other prescribed information.

 

(2)  A record in terms of subsection (1) must be kept by the employer for a period of three years from the date of the last entry in the record.

 

(3)  No person may make a false entry in a record maintained in terms of subsection (1).

 

(4)  An employer who keeps a record in terms of this section is not required to keep any other record of time worked and remuneration paid as required by any other employment law.

 

Know Your Rights: Contracts of Employment

Are you giving your Employees all the required details in writing?

(1)  An employer must supply an employee, when the employee commences employment, with the following particulars in writing:

(a) the full name and address of the employer;

(b) the name and occupation of the employee, or a brief description of the work for which the employee is employed;

(c) the place of work, and, where the employee is required or permitted to work at various places, an indication of this;

(d) the date on which the employment began;

(e) the employee’s ordinary hours of work and days of work;

(f) the employee’s wage or the rate and method of calculating wages;

(g) the rate of pay for overtime work;

(h) any other cash payments that the employee is entitled to;

(i) any payment in kind that the employee is entitled to and the value of the payment in kind;

( j) how frequently remuneration will be paid;

(k) any deductions to be made from the employee’s remuneration;

(l) the leave to which the employee is entitled;

(m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate;

(n) a description of any council or sectoral determination which covers the employer’s business;

(o) any period of employment with a previous employer that counts towards the employee’s period of employment;

(p) a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.

 

(2)  When any matter listed in subsection (1) changes:

(a) the written particulars must be revised to reflect the change; and

(b) the employee must be supplied with a copy of the document reflecting the change.

 

(3)  If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands.

 

(4)  Written particulars in terms of this section must be kept by the employer for a period of three years after the termination of employment.

Download your free template here: Sample – Employment Contract

Know Your Rights: Lunch Breaks

How many meal intervals should Employees be given?

1)  An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour.

 

(2)  During a meal interval the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee.

 

(3)  An employee must be remunerated—

(a) for a meal interval in which the employee is required to work or is required to be available for work; and

(b) for any portion of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the work­place is situated.

 

(4)  For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at least 60 minutes.

 

(5)  An agreement in writing may—

(a) reduce the meal interval to not less than 30 minutes;

(b) dispense with a meal interval for an employee who works fewer than six hours on a day.