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.

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A probation period is the period at the beginning of an employment relationship. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance and suitability for employment before confirming appointment.

Length of the probation period

The length of the probation period is not prescribed by legislation. The duration of the probation period should be determined by the employer and must be reasonable, considering the nature of the job and the period in which the employer requires to determine whether the employee can do the job that is expected.

A probation clause

It is essential to add a probation clause to all employment contracts, whether permanent or fixed term. This is a very important period where the parties can get to know each other and where the employer can determine the employee’s capabilities. The employee will be aware of how long the evaluation period will be and should also be made aware that during this period, the employer must advise the employee of any assistance that is required to perform satisfactorily.

Assessment

The employer is required to do continuous assessment where reasonable evaluation, instruction, training, guidance or counselling is given to allow the employee a fair opportunity to render satisfactory service. If the employee is falling short of the standard, the employer should advise the employee where the employee’s work is below standard and grant the employee a reasonable period to bring their work up to standard.

Extending the probation period

An employer may consider extending the probation period or may follow proper procedures to dismiss an employee. A probation period may be extended to further give the employer the opportunity to evaluate the employee’s performance. The extension period should be reasonable and fair. Prior to any of these options being exercised by the employer, the employee must first be given the opportunity to make representations which must be considered by the employer.

Be careful

Probation should not be used to deprive employees of the status of permanent employment. For example, a practice of dismissing employees at the end of their probation periods for reasons unrelated to their performance or suitability for employment and replacing them with newly hired employees is inconsistent with the purpose of a probation period and may constitute an unfair dismissal.

Similarly, if there is a permanent position available, an employer should not appoint an employee on a fixed term contract and conceal the real reason for the fixed term contract. Therefore, an employer cannot use a fixed term contract for each person that is hired until they find the person that is best suited for the job. This may be regarded as an unfair dismissal. If there is no valid reason for a fixed term contract, it may be regarded as a permanent contract until the contrary is proven.

Dismissal

If an employee was dismissed during or after a probation period and the procedures were not followed correctly, or the reason for the dismissal is unfair, an employee may refer either an unfair labour practice or unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). An applicant at the CCMA has 90 days to refer an unfair labour practice dispute and 30 days to refer an unfair dismissal dispute.

Employers must ensure that employees are appointed in line with legislation, using the right employment contracts and following correct procedures during the probation period. Failure to comply with the law will become a very costly exercise when a matter is referred to the CCMA.

Contact the LWO for any advice or assistance!

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The employer’s primary objective is to enhance productivity while fostering a healthy working environment. From time to time, however, employers may feel that certain terms and conditions of employment should be amended to meet evolving workplace requirements. This raises an important question: may an employer implement such changes without consulting affected employees?

The short answer

No. An employer may not unilaterally change the terms and conditions of employment. Any change requires the employee’s consent.

The correct process

When contemplating changes, an employer should:

• Inform employees of the proposed amendments
• Allow them reasonable opportunity and time to prepare
• Consult meaningfully with those affected to obtain their views
• Aim to reach consensus and confirm any agreement in writing

Consultation is not a mere formality and it is always best to obtain legal advice before initiating a consultation process. Labour legislation often requires specific procedures, timelines and discussion points, particularly when the proposed changes relate to cost-saving measures, such as salary reductions or possible retrenchments.

Risks of non-compliance

If an employer proceeds unilaterally, employees may refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA provides employees with a platform to challenge unlawful or unfair changes, protecting their rights and ensuring workplace fairness.

Common risk areas for employers

The most frequent unilateral changes (and sources of disputes) include:

• Working hours – e.g. reducing working hours and salary, or introducing short time
• Remuneration – e.g. reducing salary or benefits (cell phone, medical aid, fuel allowance, pension fund, etc.), or amending the conditions on which bonuses are payable (thirteenth cheque, performance based)
• Duties – e.g. increasing or reducing an employee’s responsibilities

Any such changes, however minor they may seem, cannot be implemented without consultation and consent as required by law.

Written vs. implied terms

Even where an employee has no written employment contract, the position remains the same. Employment terms may be:

• Express (contained in contracts), or
• Implied (arising from collective agreements, established workplace customs or practice, or legislation)

Implied terms can be proven through agreements, past practices, or testimony from employees and managers.

Final word

The law strictly prohibits unilateral alterations to employment terms. Employers are strongly advised to:

• Always consult with employees
• Obtain written agreement
• Seek expert legal guidance before implementing any change

This approach reduces legal risks, ensures compliance, and helps maintain a fair and productive workplace.

Contact the LWO for any advice or assistance!

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Desertion is a serious workplace issue that employers are often faced with. If not managed correctly, it can result in costly disputes for employers. In the context of South African labour law, desertion differs significantly from general absenteeism and employers must understand this distinction to avoid procedural pitfalls when dealing with absent employees. Desertion may have a huge impact on a business’s normal operations and the profitability and sustainability of the employer’s business. It is imperative that employers deal correctly and effectively with deserting employees.

What is desertion?

Desertion occurs when an employee is absent from work without permission and with the intention of never returning to work. This intention to abandon the job permanently is what separates desertion from ordinary absenteeism, which is often temporary or explained by unforeseen circumstances.

What must the employer do?

It is extremely important that the employer must be able to prove that the employee has no intention of returning to work. Therefore, the employer must attempt to contact the absent employee in order to establish the reason for the employee’s absence, to urge the employee to return to work and also inform the employee of the consequences of his/her absence and of not returning to work. To have proof of these attempts to contact the employee, we advise employers to send an SMS, WhatsApp, email or a letter to the employee’s last known address. It is the employee’s duty to notify the employer of a change of address and the employer may use the employee’s last known address or contact information.

Similarly, all employees have an obligation to inform their employers of their absence from work. It is rare for an employee to have absolutely no way of informing the employer about their absence especially since electronic communication has become more accessible and affordable to more employees than in the past. This obligation however does not mean that the employer must do nothing.

After the initial attempts to contact the employee, disciplinary measures can be taken if the employee does not return to work. The employer must send a notice of disciplinary hearing to all the employee’s last known contact details. A disciplinary hearing must be held on the scheduled day and may proceed in absentia if the employee does not show up for the hearing, after which the employee may then also be dismissed.

If the employee does return to work, the employer may request reasons for the employee’s absence and failure to notify the employer. Should the employee be unable to provide valid reasons, the employer may proceed with disciplinary action as per the disciplinary code. Valid reasons for not being at work and failing to inform the employer, could include incapacity due to hospitalisation or arrest.

The disciplinary hearing

During the disciplinary hearing the employer must prove the desertion and provide evidence attesting to the employee’s unauthorised absence, as well as the steps taken by the employer to contact the employee. The chairperson at the hearing then evaluates all evidence presented and proceeds to make a finding. If the employee is found guilty of desertion, the employer must notify the employee of the outcome and sanction according to the employer’s disciplinary code.

If a dispute is referred the onus is on the employer to prove at the CCMA or Labour Court that a fair process was followed and that the finding that the employee did not intend to return to work was reasonable under the circumstances.

Desertion can disrupt an employer’s operations, but a hasty response can expose employers to legal risk. By understanding the legal requirements and applying a procedurally fair process, employers can navigate these situations effectively and lawfully. When in doubt, consult with an LWO legal advisor today.

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Workplace harassment and intimidation seems to remain prevalent issues in many workplaces.  South Africa’s Constitution, along with other legislation such as the Employment Equity Act, 1998 (EEA) and the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code), issued under the EEA, prohibits any form of harassment or intimidation in the workplace.

Harassment

Harassment is unwanted conduct that impairs dignity, creates a hostile work environment for one or more employees or is calculated to, or has the effect of inducing submission by actual or threatened adverse consequences and is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA, which includes both listed grounds and an arbitrary ground.

Common examples in the workplace:

• Physical harassment – includes physical attacks, simulated or threatened violence and gestures.
• Verbal bullying – includes threats, shaming, hostile teasing, insults, negative judgement, criticism and inappropriate language (racist/sexist/homophobic language).
• Psychological harassment – harassment in the workplace may be associated with emotional abuse and involves behaviour that has serious negative psychological consequences for the complainant such as is often the case with verbal abuse, bullying and mobbing and includes emotional abuse, slandering, humiliation, exclusion, persecution, surveillance and more.
• Bullying – behaviour in which someone repeatedly causes another person injury or discomfort.
• Mobbing – a form of harassment by a group of people targeted at one or more individuals.

Intimidation

Intimidation is the intentional behaviour that would cause a person of ordinary sensibilities to fear injury or harm. A common example in the workplace is where an employee points a knife at another employee and threatens to kill him.

Sexual harassment

The most well-known form of harassment is sexual harassment, which is a serious offence and is also deemed to be a form of unfair discrimination. Described as unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome. This behaviour includes any physical, verbal or non-verbal sexual conduct that makes the victim feel uncomfortable.

Sexual harassment violates the rights of the victim to:

• A work environment free from sexual harassment.
• Be treated with respect and dignity in the workplace.
• Equality and not to be discriminated against on the grounds of sex.

Behaviour will only be considered sexual harassment if it has a sexually unwanted undertone. The unwanted nature is distinguished from behaviour that is welcomed and reciprocated.

Sexual attention becomes sexual harassment when:

• The harassment is based on one or more prohibited grounds, namely: sex, gender, and/or sexual orientation.
• The sexual conduct is unwanted or unacceptable.
• The nature and extent of the conduct is such that the perpetrator reasonably ought to have known it could be regarded as unwanted sexual conduct.
• When assessed objectively, from the complainant’s perspective, the conduct negatively impacted the employee and such assessment must be informed by societal values as reflected in our constitutional era.

Common examples of sexual harassment might include:

• Physical touching (touching, kissing, sexual assault and rape).
• Sexual advances, threats, inappropriate comments and more.

The employer

The EEA stipulates that an employer violates the law if he/she fails to take the necessary steps in cases of alleged harassment.  Section 60 of the EEA holds an employer liable for the unlawful, discriminatory conduct of its workers. Therefore, as soon as allegations of harassment have been reported to an employer, the employer has an obligation to eliminate the conduct. Employers have an obligation to protect employees from all forms of harassment.

Employers should implement an internal workplace policy that highlights and prohibits this type of behaviour and act swiftly when an incident is reported. Each individual has the right to be treated with dignity and respect. It must be clear to all employees in the workplace that harassment will not be tolerated, how it should be reported and how it will be dealt with.

Please contact the LWO for assistance in order to ensure that a fair and proper procedure is followed.

Contact the LWO for any advice or assistance!

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Insubordination is when an employee challenges the employer’s authority and commonly occurs when an employee wilfully refuses to obey a lawful and reasonable instruction. Employees have a legal duty to obey any valid instruction within their role, and defying such an instruction effectively challenges the authority that underpins the employment relationship.

Whilst the Labour Relations Act, Act 66 of 1995 (LRA) does not define insubordination, its Code of Good Practice on Dismissal recognises gross insubordination as serious misconduct. Insubordination can be direct (e.g., saying “I refuse”) or passive (e.g., deliberately ignoring an instruction).

Insubordination vs gross insubordination

Not all defiance is equally severe. Insubordination itself is misconduct that typically warrants corrective measures (like warnings or counselling) rather than immediate dismissal. By contrast, gross insubordination involves an extreme breach of duty: it is a deliberate, serious and often repeated defiance that undermines trust. The LRA’s code of good practice explicitly warns that an employer should not dismiss an employee for a first offence unless the misconduct is so serious that it makes the continued employment relationship intolerable. The seriousness of the insubordination must be assessed in the light of the implications for the employer and against the impact it has on the employment relationship.  Only when the defiance is deliberate and serious does it rise to gross insubordination, which might justify dismissal.

Legal and procedural steps

Legislation requires that any disciplinary action be for a fair reason and follow a fair procedure:

• Employers should begin by thoroughly investigating and documenting the incident. This includes recording what instruction was given, how it was communicated, the employee’s response, dates, witnesses, and any supporting evidence.
• If the employer considers disciplinary action, issue the employee with a formal notice to attend a disciplinary hearing detailing the specific charge of insubordination. The notice should explain which instruction was defied and why it is considered misconduct.
• At the disciplinary hearing, the employee must be allowed to respond to the allegation and may be assisted by a trade union representative or fellow employee. Employers should present the evidence fairly and objectively, ensuring that the instruction in question was lawful and reasonable.
• Throughout the process, the employer must follow their internal disciplinary code, applying consistent rules and sanctions. Once a decision is made, communicate it in writing. If dismissal is the outcome, the dismissal letter must outline the reasons. All records of the process should be kept in case of future disputes.

Disciplinary measures and best practices

Progressive discipline is a key principle in addressing insubordination.  In most cases, employers follow a structured process that begins with less severe measures and escalates only if necessary.  Dismissal should generally be considered as a last resort, appropriate only for serious or repeated misconduct.

Initial steps may involve informal counselling or verbal guidance to correct the behaviour and reinforce expectations. If the issue continues or is more serious, formal written notices may be issued. These should clearly describe the conduct in question and the consequences of any further incidents. Where the behaviour persists or where the insubordination is of a serious nature, the employer may escalate the matter through additional disciplinary steps, which could ultimately lead to dismissal.

Throughout this process, employers should act consistently, treating similar cases alike and applying fair procedures. Each step should be properly documented, including any meetings or warnings issued. If dismissal is the outcome, the reasons must be clearly communicated, and the employer must be able to demonstrate that the decision followed a fair process.

By combining clear policies with fair, documented procedure, employers can address insubordination effectively. Upholding mutual respect and following the statutory discipline framework helps ensure employees understand their duties.

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