Dismissals still aren’t simple…

New code, old lessons – don’t believe the hype:  dismissals still aren’t simple. Ever since the new Code of Good Practice: Dismissal (CGPD) was published in draft form for public comment in January 2025, public discussion has largely centred on how it would finally make dismissals simpler, quicker, and less cumbersome, especially for smaller employers dealing with the proverbial “rotten apples” guilty of misconduct.

Business owners therefore understandably expected that, with the new CGPD taking effect on 4 September 2025, dismissing an employee for serious misconduct would now be a mere formality. However, that perception is a dangerous oversimplification of what the new code actually changes.

Simpler processes – but still bound by fairness

Item 3(3) of the CGPD provides that:

“For example, small businesses cannot reasonably be expected to engage in time-consuming investigations or pre-dismissal processes while at the same time keeping the business going. It should also be borne in mind that small employers do not have human resource departments offered by people with skills and experience in these matters.”

While this appears to offer flexibility to smaller employers, the fundamental requirements of fairness remain unchanged. Dismissals must still be based on a fair reason, follow the employer’s internal policies and comply with a fair procedure, albeit that the employer may now implement a more practical and less formal disciplinary policy.

In outlining what a fair procedure entails, the CGPD includes several provisions. Notably, Item 11(3) states:

“An investigation or inquiry does not have to be formal. Its nature should be appropriate to the circumstances, including the type of allegation and the nature and size of the employer.”

Unfortunately, the CGPD offers no clear guidance on what level of process is appropriate for different sizes of employers. It therefore remains to be seen whether focusing on a thorough investigation, rather than a lengthy, courtroom-style disciplinary hearing will be considered sufficient.

The CCMA’s role remains the same

Importantly, the role of the Commission for Conciliation, Mediation and Arbitration (CCMA) in considering the fairness of a dismissal has not changed. The fact that a dismissed former employee may refer an unfair dismissal dispute with the expectation of a complete rehearing of the matter before an arbitrator, has thus not changed either. This basically means that the employer’s role when conducting the investigation also remains largely the same.

Therefore, in practice, an employer’s responsibility to gather and preserve evidence early on has not changed. In fact, it has become even more critical. Employers who opt for a simplified internal process must ensure that the evidence supporting the dismissal is solid, well-documented, and preserved for potential CCMA scrutiny.

By the time the employer’s first witness (often the business owner) is cross-examined at arbitration, it is far too late to start looking for missing, or poorly recorded, evidence. Few employers have the internal capacity to conduct proper investigations into serious misconduct or criminal activity, and where such capacity exists, it is rarely independent or adequately equipped to handle complex or sensitive cases.

Specialist investigations

This is why making use of a specialist investigator is an important tool for employers to prepare for a hearing in a professional and fair manner, especially when dealing with complex or sensitive matters.

LWO members are reminded that a specialist ad hoc pre-hearing investigation service is available to members through our partnership with Labour Quest. This service is led by Adv Ben Lategan, an experienced legal practitioner and specialist investigator.

Don’t wait until you are sitting at the employee’s disciplinary hearing or, even worse, the CCMA, before starting a proper investigation and preparation process. Simpler processes might not always be better, and simpler procedures do not necessarily mean guaranteed outcomes.

Contact the LWO if you would like to make use of this service or request further details. Alternatively, you can contact Labour Quest directly for more information on 076 091 4647 or via e-mail: info@labourquest.co.za.

Contact the LWO for any advice or assistance!

Not an LWO member yet? Take a look at our membership packages.