|
A new draft Code of Good Practice on Dismissal (Schedule 8 to the LRA) was published for comment on 21 January 2025 by the DoEL. Comments are due 60 days after this date.
Much of the additions is confirmation / codification of principles that have been established by the courts. Highlights include:
🔻Some procedural allowances are made for small businesses.
🔻Factors to consider the fairness of a sanction for misconduct, have been expanded on, in alignment with case law precedent. The importance of the rule that was breached and the harm caused by the misconduct, are specifically added to substantive fairness considerations.
🔻Fair procedure for misconduct would require only a genuine dialogue and the opportunity for reflection before a decision is taken, a reasonable opportunity to respond to allegations, and the procedure does not need to be formal. (Note, however, that many employers prefer a formal process prior to a potential dismissal, to test the substantive merits of the case before taking a decision to dismiss, rather than simply to comply with procedural requirements.)
🔻Processes for misconduct arising from participation in unprotected strikes, and issuing of ultimatums have been added.
🔻Incapacity - some changes to the requirements for a poor performance dismissal. This include a requirement that the employer must show that the required performance standard was reasonably achievable. It is also pointed out (in alignment with case law) that a less stringent poor performance management process applies to managerial and senior employees whose knowledge and experience enables them to judge whether their performance is adequate; as well as those employees with a high degree of professional skill, where a departure from the required standards would have severe consequences.
🔻Incompatibility (the inability to work in harmony with the employer’s business culture or fellow employees) is specifically recognised as an Incapacity dismissal ground, as are 'other forms of incapacity' such as imprisonment.
🔻Some relaxation of requirements relating to the dismissal of probationary employees, for both misconduct and incapacity.
🔻A new part on Operational Requirements (retrenchments), and aspects around the consultation process and selection criteria have been added. An example of the s189(3) notice (invitation to consult) has also been included.
Note that, despite these proposed procedural relaxations, employers who have very specific policies and procedures that are more onerous than the Code, will still remain bound by their own procedures, unless they formally amend these to be more flexible, in alignment with the Code.
Remember that this is only a draft, not a final document. We’ll update you as soon as the final Code is published.
7 February 2025
Written by Judith Griessel, Griessel Consulting
|
