Background and introduction
During September 2025 the new Code of Practice: Dismissals was gazetted by the Department of Employment and Labour. It seeks to simplify and streamline the complex and contentious systems and practices that have developed around dismissals in the South African workplace, due to often seemingly contradictory case law, interpretations and local practices. In this article we take a look at a brief assessment of the Code itself, and we then place it in the wider context of South African workplace conflict.
A: An assessment of the Code itself
The Code of Practice: Dismissals (see point 3 in the resource list below for the link to the text) is an overdue, generally welcome development in our workplace conflict management. It seeks to, in admirably simple language, simplify the dense undergrowth of fact and fiction that inevitably have grown up around our workplace dismissals.
Given the importance of dismissals in the lives of individuals, groups and the corporate world, and the destructive post-dismissal practices that have developed in recent years, the attempt is a laudable one. The general perception (if not always backed by case law and other authority) is that workplace disciplinary inquiries in general, and dismissals in particular, have become cumbersome and unwieldy processes that are, nearly by design, detrimental to the business and economic interests of the country.
Small to medium businesses, often without much knowledge of the applicable law and workplace conflict nuances and intricacies of a particular situation, tinker along with Google searches or outsourced ad hoc advice from consultants of various degrees of competency and skill. Dismissals are often box-ticking exercises resentfully undertaken just to try and comply with some real or imagined minimum requirements to get rid of specific employees and to keep the damage as low as possible. The payment of hefty legal and consultancy bills, settlements and adverse CCMA or other tribunal awards are budgeted for, often accepted as a necessary and unavoidable evil.
The Code now recognizes the simple reality that smaller businesses do not always have the knowledge and resources to embark on a full bells and whistles disciplinary process. While this will of course have a distinct practical effect, and the focus on informality is to be welcomed, this recognition of the need for informality in certain instances has been applied in earlier case law and best practices in any event. There is a welcome recognition of the wider understanding of incompatibility and incapacity, a workplace reality that conflict practitioners will be well aware of.
Further distinctions are drawn between dismissals for retrenchments, the position around unprotected strikes is clarified and simplified, all in generally welcome terms as seen from the employer’s perspective, but again nothing really ground-breaking or benefits which could not have been obtained by the employer through the application of existing case law and best practices. When the new Code specifically frames itself as “intentionally general”, and the unique nature of each dismissal instance is emphasized, this hopefully brings a more realistic and practical spirit to what has become a badly mismanaged aspect of South African workplace conflict.
Formalizing existing practices may also serve to remove debate and uncertainty on these issues, which in itself is a positive development in the managing of workplace conflict. The Code also highlights other existing (at least in theory) dismissal considerations and requirements, such as existing clear rules, consistent application, and the severity of dismissal as a sanction. These are all sections that may seem like the Code stating the obvious to those of us who work with this regularly, but the codification itself brings several benefits, such as discussed above.
As is to be expected, I do anticipate a few words and phrases used in the Code to lead to disagreement and possible litigation to clarify, such as the exact meaning of “small business” or the reference to misconduct making a working relationship “intolerable”. The latter term has of course received a fair share of attention and clarification in studies and case law dealing with constructive dismissal, so we are not dealing with any tabula rasa here.
The Code also has a few welcome sections that spell out specifically some of the categories and steps that should be considered in a dismissal or disciplinary inquiry process (see eg s11 on fair process). The small business owner or occasional disciplinary process participant can benefit from the detailed discussions, all delivered in clear non-legalese. Retrenchment and poor work performance dismissals all benefit from a high degree of clarity and specificity in the Code. Overall, we could argue that the Code really just codifies mostly existing case law and best practices, but even so, this is already a welcome step in the right direction. More critically assessed, I would argue that the Code could have made use of this opportunity to formalize and include a few more modern workplace conflict best practices (see below), and that an opportunity to reduce dismissal formalities even further is required.
The Code does entrench a few outdated (consultation with union before member charged, as an example) practices, and fails to really modernize our dismissal approach, but these are goals that we can start working on now seeing that, hopefully, a large number of harmful and unproductive dismissal practices and arguments have been removed.
B: Placing the Code in modern workplace conflict itself
The Code is still disappointingly reactive in its approach to workplace conflict. Conflict studies and practice, as informed and shaped by its multi-disciplinary approach in recent years, have shown the crucial and urgent need for modern businesses to design and implement state-of-the-art workplace conflict systems and strategies, and how the success or failure of these approaches directly, and measurably, play a meaningful role in the success of team performance, and the profitability and survival of these businesses.
The Code again, as seems to be the driving philosophy in all or most of our employment law and practice, works from the foundation of workplace dismissals as an inevitable scourge, something that has to be dealt with in a certain way very late in the workplace relationship.
This puts new paint on an old façade, and simply entrenches and simplifies the philosophy of confrontational workplace dismissals. While the Code acknowledges dismissals as an option of last resort, it does nothing in itself to encourage a modern approach to workplace conflict, of which dismissals should be an important but minor facet. Simply put, a modern workplace conflict system more often than not either prevents the employer and employee reaching this stage where we consult the Code on dismissals, or it makes the entire process of dismissal a very different, more efficient, less costly, less risky one. It is of cold comfort to the employer to still carry the cost, risk and potential harm inherent in a poorly managed workplace conflict system but to do so within a streamlined system.
I would have wished to see the new Code deal with, and incorporate, the following workplace conflict ideas, as a few examples of many, systems and solutions into the fabric of workplace dismissals:
(a) Early detection of conflict causes, as opposed to a continued attempt at dealing with symptoms thereof;
(b) The specific encouragement of, and inclusion in the Code, of formal training of selected employees (and union officials)in at least basic workplace conflict principles and techniques, including those concepts dealt with in the new Code;
(c) The formal encouragement of alternative forms of workplace conflict skills and competencies, such as workplace mediation and conflict negotiation; (
d) Some form of compulsory training, say once a year, for selected staff and senior management in workplace conflict principles, which should be designed to avoid some of the endemic misunderstandings and different expectations that lead to so much workplace conflict;
(e) A limitation of workplace conflict and dismissal matters that can be referred to post-dismissal tribunals such as the CCMA, labour councils and the like.
Conclusion
Workplace conflict management has become such a dynamic and practical asset in the modern workplace that this seems like an opportunity lost, at least for now. Our employment law and its application remains cumbersome and extremely sophisticated, often presenting a dense and misunderstood obstacle to the employer and their main reason for commercial activity.
Comparing a modern workplace that has the performance benefits of dynamic team performance, an early limitation and resolution of workplace conflict causes and the measurable benefits of a dedicated internal dispute system design framework in place, to a workplace still retroactively dealing with minimum compliance with a dismissal code seems unnecessarily limiting and outdated. It also says a lot about our government’s minimal and reactive approach to this crucial workplace component.
This Code will no doubt now be used as a box-ticking list of how-to’s, to the detriment of all involved parties, locking us in outdated workplace conflict spirals that our economy can hardly afford. As these Codes and legislative interventions go, the new Code of Practice: Dismissals does what it is designed to do, and as progress on the path to more effective workplace conflict management and productivity it is to be welcomed. It remains however, a far cry from what we could have had in its place.
Summary of main sources, references and suggested reading 1. Relevant articles for your general negotiation and conflict work, and their source material, can be found at www.conflict-conversations.co.za
2. For expanded arguments on several of these related topics on workplace conflict, see Dangerous Magic: essays on conflict resolution in South Africa, by Andre Vlok (Paradigm Media, 2022), available via Amazon or the publishers.
3. The link to the Code itself at Labour Relations Act: Code of Practice: Dismissal
(Andre Vlok can be contacted at andre@conflict1.co.za for any further information.)
(c) Andre Vlok
September 2025