Keep operating with outdated employment policies at your own peril

Employment law is experiencing massive changes including the implementation of Parental Leave as opposed to the old maternity leave regulations. There are new draft regulations on the code of good practice on dismissal.

Using the old Schedule 8 framework when contemplating dismissal or denying a father equal parental leave under the old BCEA provisions and such may now be deemed as an unfair labour practice or constitute unfair discrimination.

The new Code of Good Practice: Dismissal, which took effect in September 2025, represents the most significant structural change to dismissal procedures since the promulgation of the LRA. 

The new code consolidates certain regulations and replaces previous guidelines, including the original Schedule 8 and the Code of Good Practice on Dismissal Based on Operational Requirements. The aim and goal is to unite dismissal guidelines into one single and consistent regulation.

Important points include:

Expanded Purpose of Probation: The new Code formally extends the purpose of probation and exceeds the system of merely assessing technical performance. It now specifically includes assessing “suitability for employment,” which now formally considers incompatibility and cultural fit as valid grounds for dismissal during the probationary period. Whilst this may be considered as subjective is takes into account the overall working environment and those employees currently within the workplace and how the new employee fits in so to speak.

Formal Recognition of Incompatibility: Incompatibility is now definitively classified as a valid ground for dismissal under the guise of incapacity. This provides relief to take action against employees who may fulfil their contractual obligations and who are competent but are considered as toxic or disruptive to the work environment.

Small Business Flexibility: there is relief for small businesses who do not have the capacity to have extensive and often expensive human resource expertise in their organisation and the code allows for a simpler, less formal approach to dismissal procedures whilst still upholding the fairness requirements. In short, small companies will not be held to the same procedural standards as large organisations.

Progressive Discipline and Hearings: The Code confirms that formal disciplinary enquiry hearings are not strictly obligatory in all circumstances, provided that the employee has a reasonable opportunity to state their defence and fully respond to any allegations levied against them.

To protect your company it is suggested that the following be undertaken

Audit all Leave Policies, Update your Disciplinary Codes to align to the new code, Update probationary clauses to include “suitability” and “incompatibility” assessments.

We can assist.