On 4 September 2025, the labour-law landscape for every South African employer shifted. Notice 3470 of 2025 brought the new Code of Good Practice on Dismissal into force, repealing Schedule 8 of the Labour Relations Act and the 1999 Code of Good Practice on Dismissal Based on Operational Requirements. Most disciplinary codes, warning templates, charge sheets, incapacity procedures, probation policies and section 189(3) retrenchment notices in circulation today were drafted under the repealed framework — and that misalignment is now one of the most common sources of procedural-fairness challenges at the CCMA.
This article explains what the 2025 dismissal code actually did, what it did not do, and what employers in South Africa should update now to reduce their exposure.
What was repealed and what now applies from 4 September 2025
The new Code of Good Practice on Dismissal is a single, consolidated instrument issued under section 203(2A) of the Labour Relations Act. From 4 September 2025 it applies to all three categories of dismissal under South African law — misconduct, incapacity (including poor work performance and ill-health), and operational requirements.
Two instruments were repealed on that date:
- Schedule 8 to the Labour Relations Act (the previous Code of Good Practice: Dismissal); and
- the 1999 Code of Good Practice on Dismissal Based on Operational Requirements.
Both instruments guided employer conduct for more than two decades. With Schedule 8 replaced, an employer’s disciplinary code that still references “Schedule 8”, “the Code” in its old form, or the 1999 Operational Requirements Code is not merely outdated — it is anchored to instruments that no longer exist.
The new Code is structured in Parts A to G and brings misconduct, incapacity and operational requirements into a single reference document. It also introduces a standardised Annexure A template for section 189(3) retrenchment notices, refines the guidance on probation, and expressly acknowledges the different administrative capacities of small employers. Further guidance on the Code is published by the Department of Employment and Labour.
The new Code of Good Practice on Dismissal does not change the LRA
This is the single most important point for employers to understand about the Code of Good Practice: Dismissal 2025. The Code is guidance. It does not amend the Labour Relations Act 66 of 1995 and it does not create new statutory rights or obligations.
The statutory framework is unchanged:
- Section 185 still guarantees every employee the right not to be unfairly dismissed;
- Section 186 still defines what constitutes a dismissal;
- Section 188 still requires every dismissal to be both substantively and procedurally fair;
- Sections 189 and 189A still regulate operational-requirement dismissals; and
- Section 191 still gives employees the right to refer unfair dismissal disputes to the CCMA or a bargaining council.
The reasonableness standard set out in the Constitutional Court’s decision in Sidumo continues to apply. Existing Labour Court and Labour Appeal Court jurisprudence developed under Schedule 8 remains highly relevant, because the underlying statutory tests are unchanged.
What the new Code does is refine, consolidate and clarify how those unchanged obligations should be applied in practice. Employers who read the Code as a rewrite of the LRA — or as a lowering of the fairness threshold — will misapply it.
Misconduct dismissals under the new Code — what changed in practice
The dismissal procedure in South Africa for misconduct still turns on the two-part test in section 188: substantive fairness (a fair reason) and procedural fairness (a fair process). The 2025 Code refines how employers should approach that test. Five practical shifts stand out.
First, greater emphasis on corrective and progressive discipline. The Code reinforces that discipline should generally be corrective rather than punitive. Employers should be able to demonstrate that lesser sanctions — counselling, warnings, training — were genuinely considered.
Second, greater focus on proportionality of sanction. One of the strongest themes in the Code is that dismissal should not be the default outcome once misconduct has been established. Chairpersons are expected to record why dismissal is a proportionate and appropriate sanction, not simply that misconduct was proved. This point overlaps with the analysis of sanction and remittal that Vermeulen Attorneys addressed in its case-note on the appropriateness of sanction in misconduct dismissals.
Third, consistency is given clearer practical attention. Where two employees commit similar misconduct but receive different sanctions, the employer should record the distinguishing factors — length of service, disciplinary record, degree of culpability, degree of remorse — at the time the decision is made, not after a referral is received.
Fourth, flexibility over formality. The Code discourages the misconception that every disciplinary hearing must resemble a criminal trial. A fair process is one in which the employee understands the allegations, has a genuine opportunity to respond, and receives a decision made with an open mind. Excessively formal procedures are not required and, in smaller workplaces, are often inappropriate.
Fifth, updated guidance on industrial-action misconduct. Participation in protected industrial action does not immunise employees from discipline where they engage in misconduct during the strike. The Code updates the guidance for handling those situations.
Incapacity, probation and ill-health under the new Code
The Code draws a clearer line between misconduct and incapacity. Poor work performance is not a disciplinary matter, and employers should avoid charging an under-performing employee as though the difficulty were a form of wrongdoing.
Poor work performance. The Code reinforces that the employer must be able to show that realistic performance standards were set and communicated; that coaching, counselling and reasonable assistance were provided; that performance was monitored; and that the employee was given a genuine opportunity to improve before dismissal was considered.
Ill-health and injury. Where an employee’s incapacity flows from illness or injury, the employer must investigate the nature and duration of the incapacity and, where reasonable, consider accommodation before contemplating dismissal. If the incapacity may constitute a disability under the Employment Equity Act, the employer’s obligations concerning reasonable accommodation and unfair discrimination are engaged. Dismissal remains an option of last resort.
Probation. This is the area in which employers are likely to feel the change most sharply. The 2025 Code preserves the legitimate purpose of probation — evaluating suitability, competence and compatibility — but treats it as an evaluative process, not a shortened disciplinary one. Employers must give probationary employees reasonable support, guidance and feedback, calibrated to the size and resources of the business and the complexity of the role.
The Code also makes it clear that probation may not be used to hold employees in temporary positions indefinitely, or to avoid appointing employees permanently where the role warrants it. Misuse of probation in that way may now amount to an unfair dismissal (under the previous framework, similar conduct was more commonly treated as an unfair labour practice). Employers should read this section of the Code together with our detailed guidance on dismissing a probationary employee in South Africa.
Operational requirements and the new Annexure A section 189(3) notice
Sections 189 and 189A of the LRA are unchanged. The consultation obligations — meaningful joint consensus-seeking on the reasons for retrenchment, alternatives, selection criteria, timing, severance and assistance — remain the cornerstone of procedural fairness.
What is new is the standardised retrenchment notice Annexure A template introduced by the Code. Annexure A gives employers a consistent framework for the section 189(3) notice, prompting them to address, at the outset, each item the LRA requires: the reasons for the proposed retrenchment, alternatives considered, the number and categories of employees likely to be affected, proposed selection criteria, timing, severance proposals, assistance offered, and the opportunity to make representations.
Three practical points require caution.
- Annexure A does not replace the consultation. It is a starting document. Employers who treat the issuing of a compliant notice as the whole of section 189 compliance will still be found procedurally unfair if the consultation itself is not genuine.
- Legacy templates are a real risk. Retrenchment notices developed in-house years ago frequently omit statutory items now called out in Annexure A. Employers relying on legacy templates should replace them.
- The consultation must remain open-minded. A predetermined decision is one of the most common reasons retrenchments fail at the CCMA and Labour Court. Consultation is not the announcement of a decision already made.
What small employers should know about the new Code
The Code expressly recognises that small employers may not have the administrative infrastructure of large corporates. This is a welcome acknowledgement — but it is not an exemption.
Every employer, regardless of size, must comply with the LRA. For small businesses this typically means that a simple, fair process will be sufficient, provided:
- the employee is told what the allegation is;
- the employee has a reasonable opportunity to respond;
- the employer considers the response with an open mind; and
- reasons for the decision are recorded.
Where the business has no HR function, it is acceptable for the owner or a senior manager to investigate the matter and chair the hearing, provided the decision is made fairly and objectively. Limited resources are never a defence to an unfair process.
Evidence and record-keeping under the 2025 dismissal code
Under section 192(2) of the LRA, the employer bears the onus of proving the fairness of a dismissal. The 2025 dismissal code reinforces that the record an employer creates during the process is often decisive.
Employers should:
- create contemporaneous records rather than reconstructing events after a referral;
- record not only the decision, but the reasoning behind it;
- document consistency considerations at the time the sanction is imposed;
- record employee participation (or a declined opportunity to participate);
- keep structured performance-management records for incapacity dismissals;
- retain medical and consultation records for ill-health dismissals, together with any reasonable-accommodation assessment;
- preserve consultation records for retrenchments to demonstrate a genuine joint consensus-seeking process; and
- preserve relevant electronic evidence promptly, before routine deletion cycles remove it.
Managers should be trained to record factual observations rather than opinions. Subjective commentary tends to undermine the reliability of otherwise sound documentation.
Early warning signs a dismissal may not survive scrutiny
Fair dismissal under the new code depends on a small number of practical disciplines. The following warning signs suggest a contemplated dismissal is unlikely to withstand a CCMA challenge:
- the reason for dismissal is unclear, or has shifted during the process;
- the decision-maker has effectively decided on dismissal before hearing the employee;
- the evidence is thin or based on speculation;
- procedural shortcuts are being taken for convenience;
- similar previous cases were handled differently, without documented reasons;
- alternatives to dismissal have not been genuinely considered;
- the documentary record is poor;
- additional statutory protections (such as protected disclosure or discrimination rights) may be engaged;
- managers are relying on policies or templates drafted under Schedule 8; or
- the decision appears to be driven by workplace frustration rather than objective evidence.
Where any of these signs are present, employers should pause and reassess before proceeding. The CCMA does not require a court-like process, but it does require a genuinely fair one.
If a contemplated disciplinary, incapacity or retrenchment matter shows any of these warning signs, contact Vermeulen Attorneys for a considered second opinion before the process advances further.
What every South African employer should update now
The Code of Good Practice: Dismissal 2025 should prompt a document audit in every workplace. The following are the highest-priority items:
- Disciplinary code and disciplinary procedure — remove references to Schedule 8 and align with the Code’s guidance on progressive discipline, proportionality and consistency;
- Warning templates — update to reflect the corrective purpose of discipline;
- Charge sheets and notices to attend disciplinary hearings — ensure they define the issues accurately;
- Chairperson guidelines and hearing checklists — build in prompts for proportionality and consistency findings;
- Poor performance (incapacity) procedure — reflect the structured performance-management approach the Code expects;
- Ill-health and injury incapacity procedure — include the reasonable-accommodation assessment where a disability may be engaged;
- Probation policy — align with the Code’s evaluative approach and the prohibition on misuse;
- Retrenchment templates and section 189(3) notices — replace legacy documents with an Annexure A-aligned template;
- HR and line-manager training material — brief managers on the Code’s practical shifts; and
- Record-keeping templates — build in the contemporaneous documentation the Code expects.
If you would like these documents reviewed against the 2025 Code, our labour law team can conduct a targeted audit.
When to involve a labour attorney
Not every disciplinary process needs an attorney. But early legal input often prevents the procedural defects that later become impossible to fix. Employers should consider involving a labour attorney:
- before charges are drafted in a matter of significant legal, financial or reputational risk;
- before suspending an employee, including on a precautionary basis;
- during complex disciplinary or incapacity processes;
- at the start of any retrenchment consultation, especially where Annexure A alignment is required;
- before imposing dismissal as a sanction, where proportionality is contested;
- where the matter may intersect with restraint-of-trade concerns — see our note on post-employment restraints of trade; and
- immediately upon receiving a CCMA referral, so that documents and witnesses can be secured while the record is still fresh.
Frequently Asked Questions
Is Schedule 8 of the LRA still in force?
No. Schedule 8 was repealed with effect from 4 September 2025 by Notice 3470 of 2025 and replaced by the new Code of Good Practice on Dismissal. The 1999 Code of Good Practice on Dismissal Based on Operational Requirements was also repealed on the same date. With Schedule 8 replaced, employers whose disciplinary codes still refer to the old Schedule should treat those documents as a priority housekeeping item.
Does the new Code apply to small businesses?
Yes. The Code applies to all employers. It recognises that small businesses may not have dedicated HR resources and permits a simpler, less formal process — but it does not exempt small employers from the requirement of substantive and procedural fairness under section 188 of the LRA.
Do we need to rewrite our disciplinary code and dismissal procedure in South Africa?
In most cases, yes. Policies drafted around Schedule 8 typically contain references to repealed instruments, outdated procedural language, and probation and retrenchment provisions that do not reflect the 2025 Code. A targeted revision is usually sufficient — a full rewrite is not always necessary.
Has probation changed under the 2025 Code?
The purpose of probation has not changed, but the guidance has been refined. Employers must give probationary employees reasonable support, feedback and an opportunity to improve. Probation may not be used to keep employees in temporary positions indefinitely, or to avoid confirming employees who should be appointed permanently. Misuse of probation may now amount to an unfair dismissal.
What is the retrenchment notice Annexure A and must we use it?
Annexure A is a standardised template for the section 189(3) notice introduced by the 2025 Code. It is a strongly recommended framework rather than a rigid form, and employers may adapt it to their circumstances — provided all the information required by section 189(3) is included. It does not replace the consultation process itself.
Does compliance with the Code guarantee a fair dismissal under the new code?
No. The Code is guidance on how fairness should be assessed. Compliance improves the employer’s position significantly, but the ultimate question — under section 188 of the LRA and the Sidumo standard — remains whether the dismissal was substantively and procedurally fair on the facts.
If your disciplinary code, incapacity procedure, probation policy or retrenchment templates have not been reviewed since 4 September 2025, we recommend a targeted audit against the 2025 Code. To arrange a consultation with our labour law team, contact Vermeulen Attorneys.
