The process of dismissal is one of the most sensitive aspects of managing a workforce. Missteps can lead to legal disputes, decreased morale, and reputational harm. To guide employers and employees, the Draft Code of Good Practice on Dismissals, aligned with the Labour Relations Act (LRA), provides a framework for fair, transparent, and lawful dismissal practices.
While this document is still in its draft form, it offers valuable insights for employers striving to create a fair workplace culture. Here is what you need to know.
Fairness is Key to Every Dismissal
The draft Code emphasizes that every dismissal must meet two key criteria. Firstly, the reason for dismissal must be valid and related to the employee’s conduct, capacity, or the operational requirements of the business. Secondly, the dismissal process must be transparent and provide the employee with a fair opportunity to present their case.
Structured Processes for Misconduct Cases
Dismissals for misconduct require careful adherence to fair procedures. Employers must conduct thorough investigations into allegations to ensure all details are clear. Employees must be informed of the allegations and given a chance to respond.
Formal disciplinary hearings should be held to allow employees to present their side of the story. They also have the right to representation during this process. Any decision to dismiss must be based on evidence presented during the hearing and communicated to the employee in writing.
Handling Incapacity with Care and Consideration
Incapacity dismissals, whether due to poor performance or ill health, require a thoughtful and balanced approach. Employers need to evaluate the nature and extent of the incapacity and may seek expert opinions if necessary.
Consultation with the affected employee is essential to explore support measures. This could include accommodations, performance improvement plans, or other interventions. Employers should always explore alternatives to dismissal, such as retraining or redeployment, before making a final decision.
Retrenchments Should Be a Last Resort
Retrenchments, which are dismissals based on operational requirements, should only be considered after all other options have been exhausted. Employers must engage in consultations with employees or their representatives. These discussions should cover the reasons for retrenchment, the selection criteria, and possible alternatives to retrenchment.
Fair selection criteria, such as Last In, First Out (LIFO), skills retention, or performance-based decisions, must be applied objectively. Employees who are retrenched are entitled to severance pay under the Labour Relations Act.
Why the Draft Code Matters Now
Although this document is still in draft form, the Draft Code of Good Practice on Dismissals offers essential guidance to employers. Aligning practices with its principles can help reduce legal risks while promoting a fair and transparent workplace culture.
The Impact on Employers and Employees
Employers who implement the principles of the draft Code can expect greater compliance with labour laws. They are also likely to experience fewer disputes or claims of unfair dismissal. This approach helps create a workplace culture that values fairness and accountability, even in challenging situations.
Final Thoughts
The dismissal process should always be handled with care, transparency, and respect for everyone involved. The Draft Code of Good Practice on Dismissals provides employers with a clear roadmap to manage these processes effectively while protecting the rights of employees.
For further guidance on implementing fair dismissal practices or understanding how the draft Code impacts your organization, reach out to us today for expert advice.
Parties interested have until 22 March, a total of 60 days, to submit their proposals to the Department of Employment and Labour.