The government has moved to implement one of the largest labour reforms since the nineties, giving more protection to smaller companies, which, unlike their bigger peers, do not have expansive human resources capabilities.
The new rules, gazetted by employment & labour minister Nomakhosazana Meth, also lower the bar for the dismissal of experienced workers deemed to be underperforming by the employer.
The government said the new code places a premium on “employment justice” and expeditious resolution of disputes. The code outlines a wide-ranging approach to workplace discipline that emphasises correction over punishment, with rules for applying graduated responses before reaching dismissal.
“While employees should be protected from unfair action, employers are entitled to satisfactory conduct and work performance from their employees. The code does not alter the rights and obligations created under a collective agreement.”
The Code of Good Practice: Dismissal introduced the most significant changes to dismissal procedures since the inception of the Labour Relations Act in the 1990s. They are likely going to cause more strain between the government, business and organised labour.
SA’s “rigid” labour laws have been a bone of contention for many years, with business saying they stifle investment, protect underperforming workers and curb employment opportunities.
The new code will force employers to review their disciplinary codes and HR policies, with human capital teams across the country set to be trained on the new provisions. Under the new dismissals regime, small businesses are exempt from overly onerous procedural requirements in a move that recognises their limited HR resources.
In essence, arbitrators will have to consider the realities of small business operations when adjudicating on dismissal matters.
“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,” Meth said in the gazette. “It should also be borne in mind that small employers do not have human resources departments staffed by people with skills and experience in these matters.”
Probation
The new rules have relaxed labour provisions that relate to probation, making it easier for employers to terminate employment during this period for poor performance and misconduct.
Under the previous regime, a probation period was limited to the evaluation of an employee’s work performance but has been extended to include “suitability for employment”, with incompatibility also to be considered during the probation period.
The new code deals with poor work performance after probation, indicating that it is not always necessary to warn an employee of potential dismissal due to poor performance.
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Key points:
- Labour reforms protect smaller companies with limited HR resources.
- New dismissal code lowers threshold for firing underperforming experienced workers.
- Focus on employment justice and faster dispute resolution.
- Small businesses exempt from complex procedural requirements.
- Probation rules relaxed; easier termination for poor performance or misconduct.
- Warning for poor performance not always required for senior/skilled staff.
- Labour groups warn reforms favor employers and weaken worker protections.
“Depending on the circumstances, an employer may not be required to warn an employee that if their performance does not improve they might be dismissed,” the new code states.
“This may be the case for managers and senior employees, whose knowledge and experience enable them to judge whether their performance is adequate, and employees with a high degree of professional skill where a departure from the high standard would have severe consequences justifying dismissal.”
Legal action
The Casual Workers’ Advice Office and Simunye Workers Forum took umbrage at the new code, particularly as it relates to small business employees, saying it will be meeting to plot the way forward, which might include legal action.
“We believe the new code actually changes the law on dismissals. This should not be happening because a code must give expression to the law — it cannot be that a code changes the law,” spokesperson Patrick Mlaba said.
“The new code ... makes it easier for capitalists to fire workers. The new code fundamentally shifts the balance of power in favour of the employers. The hiring and firing of workers will become much easier for employers.”
Saftu general secretary Zwelinzima Vavi said the changes are underpinned by a political economy whose aim is to tilt the balance of power relations on the shop floor in favour of the bosses.
“The new code removes the obligation for small employers to conduct formal disciplinary hearings. This opens the door to arbitrary dismissals without investigations, due process or fairness. Even worse, large employers may exploit this loophole by falsely claiming ‘small business’ status,” he said.
“The supposed difficulty employers encounter in hiring and firing workers informs the current round of attacks on worker protections,” Vavi said. “Saftu is unequivocal that these amendments represent raw class warfare waged by the bosses against workers.”
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