LABOUR LAW’S CHANGING — ARE YOU AHEAD OR BEHIND?

South Africa’s labour landscape is poised for significant change. The Department of Employment and Labour has signalled its intent to amend key provisions of the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA)—developments that could reshape workplace dynamics across the country.

While these amendments are still in draft form and not yet gazetted, employers, employees, and HR professionals should take note of the direction being considered.

The recent amendments to the Code of Practice on Dismissals and labour laws are a strategic and necessary response by the Government to the persistently high levels of unemployment in our country. These changes aim to combat unemployment, which is the primary contributor to poverty and inequality in South Africa.

Contrary to claims that these changes weaken labour protections, they are designed to equip our economy with the tools needed for growth and to provide more South Africans with meaningful employment opportunities. These amendments represent a pragmatic and inclusive response to a national crisis affecting us all.

Developed with the involvement of organised labour, the proposals reflect a mutual commitment to addressing the economic crisis confronting millions of unemployed South Africans. Importantly, the Draft Code of Good Practice on Dismissals does not address employees who have been employed for three months or new job seekers, nor does it permit employers—including small businesses—to dismiss workers without a fair reason or procedure. While allowing flexibility in applying procedures to account for the limited resources of small businesses, it still requires that dismissals be based on legitimate reasons, with employees treated fairly and given an opportunity to respond.

Summary of Key Changes in Labour Law and Code of Good Practice on Dismissals

1. Three-Month Qualifying Period for New Entrants: A three-month qualifying period has been introduced to allow employers a fair opportunity to assess the suitability of individuals entering the workforce for the first time. Importantly, this period does not remove core protections—new entrants remain fully protected from automatically unfair dismissals, such as those based on discrimination, union activity, or whistleblowing, from the very first day of employment. This provision is limited strictly to new job seekers and does not affect the rights or protections of existing employees.

2. Fair but Flexible Dismissal Procedures: All dismissals must still be based on legitimate reasons and carried out through a fair process. While small businesses are permitted to adopt simplified procedures due to limited resources, they are still required to act justly and ensure that employees are given a fair opportunity to respond before any dismissal decision is made.

3. Clarification on Incapacity Dismissals: The definition of “incapacity” has been expanded to include a persistent inability to work harmoniously with others, rather than personal disagreements or instances where employees raise legitimate concerns. Dismissals for incompatibility must still follow due process, including a thorough assessment, exploration of alternatives, and reasonable efforts to help the employee improve before termination is considered.

4. Repeal of Section 189A(13) – Retrenchment Process: Procedural disputes during retrenchments may now be addressed after dismissal through regular unfair dismissal proceedings. This shift aims to reduce rushed, expensive litigation during consultations and instead promote more meaningful, constructive engagement between employers and employees, while still ensuring accountability and fairness.

5. Amendments to Section 186(2) – Clarifying Jurisdiction: Disputes related to promotions, demotions, and benefits will no longer fall under the jurisdiction of the CCMA or Labour Courts, unless they involve discrimination or breaches of agreements. This change is intended to streamline the dispute resolution process and ensure that legal resources are directed toward addressing serious labour violations more effectively.

6. Section 77 Certificate Validity for Protest Action: NEDLAC-issued certificates for socio-economic protest action will now carry a validity period of 24 months, ensuring that such actions are current, relevant, and based on recent dialogue efforts. Importantly, workers’ right to protest remains fully protected—this amendment only updates the administrative process to promote accountability and reinforce the role of constructive negotiation.

7. Balanced Approach to Growth and Protection: These changes are intended to reduce unemployment and stimulate job creation, all while retaining essential labour protections. They are the result of collaborative efforts between government and organised labour and should not be viewed as a dilution of workers’ rights, but rather as a balanced response to South Africa’s unemployment crisis.

Next Steps for Employers: Prepare, Don’t Implement (Yet)

Though these changes are not yet enacted into law, now is the ideal time for employers to begin preparing. Key steps include:

• Monitor Legislative Developments: Stay informed on the status of the amendments and engage trusted legal advisors to interpret their potential impact.

• Review Internal Policies and Procedures: Start identifying which employment contracts, dismissal processes, and dispute resolution mechanisms may need adjustment once the amendments take effect.

• Build Organisational Readiness: Educate HR teams and line managers on the proposed changes and develop flexible strategies to ensure timely and effective compliance when implementation becomes necessary.

Be proactive, not reactive — lead the change!