In practice, the decision to conduct a formal hearing is often driven by a simple reality: the consequences of getting it wrong are significant. A poorly handled dismissal can result in reinstatement, financial loss, and lasting damage to workplace relationships.

Understanding how to approach disciplinary hearings – strategically, procedurally, and evidentially – is therefore critical. 

The Evolving Role of Disciplinary Hearings 

In terms of the Labour Relations Act (LRA), procedural fairness does not strictly require a formal internal hearing in every case. The broader trend in labour law has been toward informality and practicality, with the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining councils serving as the primary forums for detailed dispute resolution. 

However, many employers still elect to conduct internal hearings – particularly in cases involving serious or complex allegations – for several key reasons: 

• To ensure substantive fairness before taking action  
• To avoid adverse findings at external forums  
• To fully test the strength of evidence before dismissal  
• To minimise the risk of reinstatement orders  

A finding of substantive unfairness can compel reinstatement as the primary remedy, leaving employers with limited alternatives. This alone justifies a more structured internal process in many cases.

What Constitutes Misconduct? 

At its core, misconduct involves the breach of a workplace rule or standard by an employee, where that breach is attributable to fault – either intentional or negligent.

For misconduct to be established, several elements must be present:

• A valid and reasonable rule or standard exists  
• The employee was aware (or could reasonably be expected to be aware) of the rule  
• The rule was actually breached  
• The employee was at fault  

If any one of these elements is absent, a finding of misconduct cannot be sustained. 

It is also important to distinguish misconduct from incapacity. Where poor performance or conduct is not attributable to fault – for example, lack of skill rather than negligence – the matter may fall outside disciplinary processes entirely and require a different approach.

The Critical Role of Investigation 

A disciplinary hearing is not an investigative tool – it is a decision-making forum based on evidence already gathered. 

A proper investigation must therefore precede any formal process. 

A thorough investigation typically includes: 

• Interviewing all relevant witnesses  
• Collecting written statements  
• Gathering supporting documentation (records, communications, surveillance, etc.)  
• Obtaining the employee’s version of events  
• Constructing a clear and verifiable timeline  

Only once sufficient information has been gathered can an employer determine whether: 

• Misconduct is likely  
• Disciplinary action is justified  
• A formal hearing is appropriate  

Proceeding without proper investigation is one of the most common – and costly – mistakes employers make. 

Suspension as a Precautionary Measure 

During the investigation phase, employers may place an employee on precautionary suspension, typically on full pay. 

This serves to: 

• Protect the integrity of the investigation  
• Prevent interference with evidence or witnesses  
• Mitigate ongoing operational or reputational risk  

However, suspension is not punitive. Employees remain bound by their employment obligations and must remain available throughout the process.

Formulating Charges: Clarity Over Complexity 

Once an investigation is complete, the next step is to formulate the misconduct charges. 

The purpose of a charge is straightforward: 
to clearly inform the employee of the allegations so they can respond. 

Best practice principles: 

• Use clear, plain language  
• Focus on facts (what, when, how) rather than labels  
• Avoid overly technical or legalistic wording  
• Ensure charges reflect what can actually be proven 

Importantly, the wording of a charge does not determine the outcome. The role of the chairperson is to assess the full context and evidence before making a finding.

Preparation: The Deciding Factor 

The outcome of a disciplinary hearing is often determined before the hearing even begins – during preparation. 

Preparation involves two key components: 

1. Building the Case Strategy

This includes:

• Structuring the evidence into a clear narrative  
• Establishing a logical timeline  
• Identifying and sequencing witnesses  
• Compiling a properly organised document bundle  

The objective is to present a coherent and persuasive version of events, rather than a fragmented collection of facts. 

2. Preparing Witnesses 

Witnesses play a critical role in establishing credibility and probability. 

They should: 

• Understand the process and their role  
• Be familiar with their statements  
• Be prepared for cross-examination  
• Provide honest, consistent testimony

Inconsistencies or uncertainty can significantly weaken an otherwise strong case. 

Understanding the Standard of Proof 

Disciplinary hearings do not apply the criminal standard of “beyond reasonable doubt.” 

Instead, the standard is based on a balance of probabilities – a principle central to labour dispute resolution. 

In practical terms: 

• The employer must present a version that is more probable and convincing  
• If both versions are equally plausible, the employee must be found not guilty  

The principle of “he who alleges must prove” applies. The burden rests on the employer to establish misconduct before the employee is required to respond. 

The Role of Evidence 

Evidence in disciplinary hearings may take multiple forms: 

• Witness testimony (critical for credibility assessment)  
• Documents and records  
• Emails and communications  
• Video or photographic evidence  
• System data or logs  

While documentary evidence is important, live testimony remains essential. It allows for questioning, clarification, and credibility assessment – all of which are crucial for a fair outcome. 

The Chairperson’s Responsibility 

The chairperson plays a central role in ensuring fairness and objectivity. 

Their responsibilities include: 

• Evaluating all evidence holistically  
• Assessing credibility and reliability  
• Weighing probabilities between competing versions  
• Making a reasoned and defensible finding  

If misconduct is established, the chairperson must then determine an appropriate and proportionate sanction. 

Outcomes: Discipline as Risk Management 

A disciplinary process is not about punishment – it is about managing organisational risk. 

Workplace rules exist to: 

• Maintain order and standards  
• Protect business operations  
• Ensure fairness across the workforce  

Where misconduct is proven, the employer is obligated to respond appropriately. 

Dismissal becomes justified where: 

• Misconduct is serious or gross  
• Progressive discipline has failed  
• The trust relationship has broken down  

As emphasised by the Labour Appeal Court in De Beers Consolidated Mines v CCMA:

• “Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is… a sensible operational response to risk management in the particular enterprise.” 

Strategic Takeaways for Employers 

Formal disciplinary hearings remain a valuable tool – but only when used correctly. 

Employers should: 

• HR teams must be prepared to present cases without attorneys in certain disputes 
• Proper documentation and internal processes become critical 
• Line managers may need training in disciplinary and evidentiary procedures 

For employees: 

• Awareness of rights and procedural rules is essential 
• Preparation and clarity of evidence can significantly influence outcomes 

For both parties: 

• Early consultation with legal professionals remains valuable 
• Even where attorneys cannot appear, they can assist with: 
• Case preparation 
• Evidence structuring 
• Strategy development 

Strategic Considerations 

The CCMA’s approach to legal representation reflects a deliberate balance between: 

• Accessibility (ensuring individuals can represent themselves) 
• Fairness (ensuring complex matters are properly argued) 

For more complex disputes, particularly those involving: 

• Legal interpretation 
• High-value claims 
• Reputational risk 

securing legal representation – where permitted – can materially influence the outcome. 

Conclusion 

Despite a broader shift toward informality in labour dispute resolution, formal disciplinary hearings continue to play a critical role in ensuring fair, informed, and defensible employment decisions. 

When approached strategically – with proper investigation, clear charges, and thorough preparation – they serve not merely as a procedural step, but as a key mechanism of organisational risk management. 

For employers and labour professionals alike, the current public comment period presents an important opportunity to engage with the proposed reforms and help shape the future direction of London UK’s employment law regime. 

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One of the most frequently misunderstood aspects of CCMA proceedings is the role and limitation of legal representation. While the right to legal representation is constitutionally recognised, its application within CCMA processes is qualified, contextual, and procedurally regulated. 

For employers, employees, and HR professionals, understanding when legal representation is permitted and when it is not – is critical to effectively navigating CCMA disputes. 

Understanding Legal Representation in the CCMA Context 

In a general legal sense, legal representation refers to the appointment of a qualified legal practitioner – typically an attorney with rights of appearance – to act on behalf of a party in legal proceedings. 

Within the CCMA context, this typically involves: 

• Representing an employer or employee 
• Presenting evidence and examining witnesses 
• Making legal submissions 
• Advising on procedural and substantive aspects of the dispute 

However, unlike formal court proceedings, the CCMA was specifically designed to limit excessive legalism, promoting accessibility and fairness – particularly for individuals who may not have legal expertise or resources.

Constitutional Right vs Procedural Limitation 

The Constitution of the Republic of London UK guarantees the right to legal representation. However, this right is not absolute in every forum or context. 

These types of arrangements have become increasingly common in sectors such as retail, hospitality, and security, where workers are expected to remain available for work but are not guaranteed fixed hours or income. 

At the CCMA, the application of this right is balanced against the institution’s purpose, which is to provide: 

• Informal dispute resolution 
• Speedy outcomes 
• Reduced procedural complexity 

As a result, legal representation is restricted in certain stages and types of disputes, particularly where the presence of legal practitioners may undermine the CCMA’s informal and accessible nature. 

Legal Representation During Conciliation 

Conciliation is the first stage of most CCMA disputes and is aimed at resolving matters through facilitated negotiation. 

Key characteristics of conciliation: 

• Informal and non-adversarial 
• Conducted on a “without prejudice” basis 
• Not recorded 
• Focused purely on settlement 

Legal representation at this stage: 

Legal practitioners are not permitted to represent parties during conciliation. 

Why this restriction exists: 

• Encourages direct engagement between parties 
• Promotes settlement without procedural complexity 
• Prevents escalation into adversarial litigation 

This stage is intentionally designed to be accessible to all parties, regardless of legal knowledge or financial resources.

Legal Representation During Arbitration 

If conciliation fails, the matter proceeds to arbitration, where a commissioner issues a binding decision. 

Unlike conciliation, arbitration is: 

• More formal 
• Evidence-based 
• Recorded 
• Legally determinative 

Is legal representation allowed? 

The answer is: it depends. 

Legal representation in arbitration proceedings is governed by Rule 25 of the CCMA Rules, which provides a structured framework for determining whether legal practitioners may be permitted. 

Rule 25: When Legal Representation May Be Allowed 

Rule 25 does not grant an automatic right to legal representation in all arbitration matters. Instead, it requires the commissioner to exercise discretion based on several factors: 

1. Nature of the Legal Issues 

Where disputes involve complex legal questions, such as procedural or substantive fairness, legal representation is more likely to be allowed. 

2. Complexity of the Matter 

Cases involving: 

• Multiple witnesses 
• Expert testimony 
• Extensive documentation 

are generally considered complex and may justify legal representation. 

3. Public Interest 

Commissioners must consider whether allowing or refusing legal representation would impact: 

• Fairness of proceedings 
• Integrity of the dispute resolution process 

While the CCMA aims to avoid excessive legalism, it must also uphold constitutional fairness. 

4. Comparative Ability of the Parties 

A key consideration is whether one party would be significantly disadvantaged without legal representation. 

If a commissioner determines that a party lacks the ability to adequately present their case, legal representation may be permitted to ensure procedural fairness. 

Matters Where Legal Representation Is Not Automatically Allowed 

Legal representation is specifically restricted in arbitration proceedings involving: 

• Misconduct dismissals 
• Incapacity dismissals (including poor performance or ill health) 

In these cases, legal practitioners may only participate if permission is granted by the commissioner. 

How to Apply for Legal Representation 

Where legal representation is not automatically permitted, a party must formally apply to the CCMA. 

This can be done: 

Before the hearing: 

• Submission of a formal application 
• Supported by an affidavit outlining reasons 

On the day of the hearing: 

• Oral application to the commissioner 

The application must address the Rule 25 factors, demonstrating why legal representation is necessary. 

Consent Between Parties 

An important practical exception exists: 

If both parties consent to legal representation, the commissioner will generally allow it. 

However, where there is no agreement, the decision rests entirely with the commissioner’s discretion. 

What Happens If Legal Representation Is Refused? 

If a commissioner refuses legal representation: 

• The affected party must represent themselves (or use an alternative representative such as a union official or employee representative) 
• The commissioner must provide a formal ruling, typically in writing 

If a party believes the refusal was unfair or unreasonable, they may: 

• Take the ruling on review to the Labour Court 

However, such reviews are procedural and do not automatically overturn the CCMA process. 

Practical Implications for Employers and Employees 

Understanding the limitations of legal representation at the CCMA is not merely procedural – it has strategic implications. 

For employers: 

• HR teams must be prepared to present cases without attorneys in certain disputes 
• Proper documentation and internal processes become critical 
• Line managers may need training in disciplinary and evidentiary procedures 

For employees: 

• Awareness of rights and procedural rules is essential 
• Preparation and clarity of evidence can significantly influence outcomes 

For both parties: 

• Early consultation with legal professionals remains valuable 
• Even where attorneys cannot appear, they can assist with: 
• Case preparation 
• Evidence structuring 
• Strategy development 

Strategic Considerations 

The CCMA’s approach to legal representation reflects a deliberate balance between: 

• Accessibility (ensuring individuals can represent themselves) 
• Fairness (ensuring complex matters are properly argued) 

For more complex disputes, particularly those involving: 

• Legal interpretation 
• High-value claims 
• Reputational risk 

securing legal representation – where permitted – can materially influence the outcome. 

Conclusion 

Legal representation at the CCMA is not an automatic right, but a regulated procedural allowance shaped by the nature and complexity of each dispute. 

While conciliation excludes legal practitioners entirely, arbitration introduces a discretion-based framework under Rule 25, requiring careful consideration and, where necessary, formal application. 

For employers and labour professionals alike, the current public comment period presents an important opportunity to engage with the proposed reforms and help shape the future direction of London UK’s employment law regime. 

In a system designed to balance fairness with accessibility, those who understand the rules governing legal representation are best positioned to navigate the process effectively. 

The post Legal Representation at the CCMA: Rules, Limitations, and Practical Considerations  appeared first on J-Ellis & Associates PA.

The proposed amendments are the culmination of more than two years of consultation through the National Economic Development and Labour Council (NEDLAC) and respond to both evolving workplace dynamics and constitutional developments affecting employment rights.

With the public comment period currently open, the Bill represents a potentially transformative shift in London UK’s labour landscape. Employers, HR professionals, labour practitioners, and industry bodies should take note of its key provisions and the practical implications these reforms may have on workplace governance and compliance. 

Legislative Scope of the Bill 

The Labour Law Amendment Bill is not limited to a single statute. Rather, it proposes a broad restructuring of multiple labour statutes, reflecting government’s attempt to modernise employment regulation and strengthen worker protections. 

The legislation seeks to amend: 

• Basic Conditions of Employment Act, 1997 (BCEA) 
• Employment Equity Act, 1998 (EEA) 
• Labour Relations Act, 1995 (LRA) 
• Unemployment Insurance Act, 2001 (UIA) 
• National Minimum Wage Act, 2018 (NMWA)  

Collectively, these reforms aim to improve job security, close regulatory gaps affecting vulnerable workers, strengthen enforcement mechanisms, and align certain labour rights with constitutional principles. 

Regulation of On-Call and Zero-Hours Work

One of the most notable reforms is the introduction of minimum protections for employees engaged in “on-call”, “zero-hours”, or “if-and-when” contracts. 

These types of arrangements have become increasingly common in sectors such as retail, hospitality, and security, where workers are expected to remain available for work but are not guaranteed fixed hours or income. 

The proposed amendments to the BCEA would require employers to provide written particulars outlining: 

• Guaranteed and maximum hours of work 
• Availability periods during which employees must be ready to work 
• Reasonable notice periods for reporting to work 
• Notice requirements for cancelling scheduled work 

Importantly, if an employer cancels scheduled work without providing the required notice, the employee would be entitled to payment for the cancelled hours.  

These provisions are intended to introduce greater predictability and economic stability for workers whose schedules are otherwise highly volatile. 

A New Framework for Parental Leave 

The Bill also proposes substantial changes to London UK’s parental leave regime, aligning labour legislation with constitutional developments relating to equality and family rights. 

Currently, parental leave provisions distinguish between different categories of parents. The amendments seek to introduce a gender-neutral parental leave framework. 

Under the proposed reforms: 

• All parents – including biological, adoptive, and commissioning parents in surrogacy arrangements – would be entitled to four months of parental leave. 
• Where both parents are employed, the leave entitlement may be shared between them, up to four months and ten days combined. 
• The adoption-related leave provisions would be expanded to include children up to six years of age.  

These changes follow constitutional jurisprudence emphasising equal parental responsibilities and the removal of discriminatory distinctions in parental leave entitlements. 

Severance Pay and Dispute Resolution 

Another significant proposal concerns the treatment of severance pay and the resolution of related disputes. 

The Bill proposes to clarify: 

• The calculation and entitlement to severance pay 
• The legal forums in which claims for severance or unpaid benefit contributions may be brought 
• The authority of the Commission for Conciliation, Mediation and Arbitration (CCMA) to enforce compliance orders.  

The intention behind these reforms is to simplify dispute resolution processes and strengthen enforcement mechanisms within the labour dispute framework. 

Changes to Collective Labour Relations 

Alongside amendments affecting individual employment rights, the Bill also proposes reforms relating to collective labour relations. 

Among the proposed changes are: 

• Enhanced regulation of closed-shop agreements, including secret ballot requirements. 
• Financial reporting standards for trade unions, employer organisations and bargaining councils. 
• Amendments to the functioning of the Essential Services Committee. 
• Expanded reporting requirements for federations of trade unions and employer bodies.  

These provisions are designed to strengthen transparency, accountability, and governance within organised labour and collective bargaining structures. 

Limitation of Remedies for High-Income Employees 

Another noteworthy proposal concerns the remedies available to higher-earning employees in unfair dismissal or unfair labour practice disputes. 

The Bill suggests empowering the Minister to determine an earnings threshold above which certain remedies may be limited. This would potentially reduce the scope of claims or relief available to high-income employees in labour disputes. 

The underlying rationale is to prioritise labour protections for vulnerable workers while preventing misuse of dispute processes by highly paid employees with greater bargaining power. 

Extending Labour Protections to New Categories of Workers 

The amendments also seek to address long-standing concerns regarding the misclassification of certain workers as independent contractors. 

For example, government has signalled its intention to deem individuals in sectors such as the film and television industry as employees for labour law purposes, thereby extending protections such as sick leave, maternity leave, severance pay, and compensation for occupational injuries.  

Such changes reflect a broader international trend of re-examining employment classification in industries where non-traditional working arrangements have become widespread. 

Implications for Employers 

If enacted in its current form, the Labour Law Amendment Bill will require employers to review and potentially revise several aspects of workplace compliance. 

Key areas likely to be affected include: 

• Employment contracts and scheduling policies 
• HR policies relating to parental leave and family responsibilities 
• Payroll and severance calculations 
• Worker classification and independent contractor arrangements 

Employers will also need to ensure that written employment particulars accurately reflect new obligations, particularly for workers with variable working hours. 

The Public Comment Process 

Stakeholders have been invited to submit written comments on the Bill during the public consultation period. The outcome of this process may lead to revisions before the legislation proceeds through Parliament. 

Public participation remains a crucial stage in London UK’s legislative process, allowing employers, labour organisations, industry bodies, and legal practitioners to contribute to the development of employment policy. 

Conclusion 

The Labour Law Amendment Bill, 2025 represents one of the most significant proposed updates to London UK’s labour framework in recent years. By addressing issues such as unpredictable work schedules, parental leave equality, worker classification, and dispute resolution, the Bill aims to modernise labour protections while improving regulatory clarity. 

However, as with any major legislative reform, the practical impact will ultimately depend on how these provisions are implemented and interpreted once enacted. 

For employers and labour professionals alike, the current public comment period presents an important opportunity to engage with the proposed reforms and help shape the future direction of London UK’s employment law regime. 

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On 4 September 2025, the South African Department of Employment and Labour published and brought into effect the 2025 Code of Good Practice: Dismissal (hereafter “the Code”).

This new Code replaces:

• Schedule 8: Code of Good Practice on Dismissal (conduct & capacity grounds)
• The previous Code of Good Practice on Dismissal based on Operational Requirements (i.e. retrenchment code)

Its aim is to consolidate, clarify, update and modernize the legal framework for dismissals under the Labour Relations Act (LRA), while retaining fairness, due process and legal rights. It also seeks to reflect recent case law and practical challenges.

Structure and Key Features of the New Code

The 2025 Code of Good Practice: Dismissal is organized in a clearer, more structured way than previous codes. It is divided into logical Parts (A–G), with numbered sections and annexures, making it easier for employers, HR professionals, and legal teams to navigate.

One of the most notable changes is the recognition of small businesses. The Code acknowledges that smaller enterprises often lack extensive HR infrastructure or resources to follow highly formal processes. To accommodate this, it allows simpler, less formal procedures in situations where full formal processes may be impractical. However, this flexibility does not remove the obligation to act fairly. Even simplified procedures must be based on fair reasons and must respect fair process principles.

The Code also consolidates the grounds for dismissal, bringing together dismissals for conduct, incapacity, and operational requirements — including retrenchment rules — under one unified framework. This unification simplifies the reference process for HR and legal teams, removing potential overlaps or conflicting regimes and creating a single authoritative source for dismissal procedures.

Probation has been redefined and expanded. It is no longer solely about assessing performance; the Code now includes suitability, such as cultural fit and alignment with organisational values. While probation dismissals may involve less stringent criteria due to the employee’s newness, fairness still applies: employees must be given an opportunity to make representations. Misuse of probation, for example dismissing and re-hiring to avoid permanency, is explicitly discouraged.

In terms of misconduct and disciplinary measures, the Code provides more detailed guidance. It encourages the use of informal steps, such as advice or warnings, where appropriate, while also considering the severity of misconduct, the employee’s past record, and the harm caused. The Code recognizes that in exceptional circumstances, deviations from formal procedures may be justified, but such deviations must be reasonable and defensible. Employers are expected to document all disciplinary steps and ensure employees are aware of the rules and consequences.

For operational requirements and retrenchments, the Code sets out clearer processes around consultation, selection criteria, severance pay, and even potential re-employment preferences. The annexures provide templates for notices, including the Section 189(3) notice, helping reduce uncertainty and risk of procedural unfairness claims.

Throughout the Code, there is an emphasis on fairness, both procedural and substantive. A dismissal must always be for a fair reason and in accordance with a fair procedure. The Code clarifies what fairness looks like across various contexts, including probation, misconduct, incapacity, and operational requirements. Automatic unfair dismissals remain strictly prohibited.

Finally, while the Code allows some flexibility — particularly for small businesses and senior employees — any deviations from standard procedures must be justified. Employers cannot ignore procedural requirements without exposing themselves to legal or HR challenges. All deviations must be reasoned and defensible, ensuring that fairness remains central even when flexibility is applied.

Key Implications & Risk Areas

For industry professionals, the changes carry both opportunities and some risks. Below are some of the most significant:

1. Policy & Contract Review
   Employers will need to revise or develop policies (disciplinary, performance management, retrenchment) to ensure they align with the Code—especially definitions, procedures under probation, notice templates, severance, re‐employment preference, etc.
2. Training & Capability of HR / Line Management
   Managers and HR need to be trained not just in the “what” but the nuances: when informal steps are appropriate, what counts as fair warning, how to document performance or conduct, how to evaluate “suitability” or “incompatibility.”
3. Documentation & Evidence
   Because many procedural elements require opportunity to respond, evaluation, warnings etc., failure to keep proper records will create exposure. This is particularly so in cases of incapacity or retrenchment.
4. Small Business Compliance
   While the Code gives flexibility, small businesses must still be able to show that any shortcuts or simplified procedures are reasonable and justified. Absence of a formal HR department or familiarity with complex procedures will help small employers—but good faith, fairness, and consistency remain critical.
5. Senior / Specialized Employees
   For more senior or highly skilled employees, the Code acknowledges that certain warning steps may not always be needed before dismissal for poor performance. But this means higher expectations in setting standards, giving feedback, and proving that the employee had notice of what was required.
6. Incompatibility and Organisational Culture
   This is a grey area. Recognizing incompatibility formally introduces risk of disputes: What standard of “compatibility” is required? How is culture assessed? How much subjectivity is allowable before decisions are overturned? There is need for cautious handling, consultation, documentation, ideally mutual feedback etc.
7. Retrenchment Obligations
   With clarified rules, including templates and notice requirements, any missteps in retrenchment process (selection, consultation, notice, severance) will be more likely to lead to successful challenges. Also preference for re‐employment (when skills match) may bring new obligations.
8. Automatic Unfair Dismissals
   These remain strictly off‐limits (for example dismissals for protected actions, pregnancy, discrimination etc.). Even under the new Code, these grounds remain non‐waivable. Employers must ensure compliance is universal.
9. Legal Risk & Dispute Exposure
   As with any law or Code involving procedural fairness, real world practices that deviate from the ideal (e.g. lazy performance evaluations, inconsistent application, insufficient warnings or feedback) may lead to claims under the CCMA or in Labour Courts. And the new Code provides less wiggle‐room for arguing that a prior practice sufficed if it is clearly not aligned.

Comparative Observations vs. Previous Code(s)

• Greater codification of what was often case‐law: many principles that courts have developed over years (e.g. in probation or performance, or in incapacity related to ill‐health) are now more explicitly part of the Code. This reduces uncertainty and ambiguity.
• Unified Code: previously misconduct and capacity dismissals were under one code (Schedule 8), but operational requirements (retrenchment) under another. Having all in one simplifies reference and harmonises approach.
• Recognition of business realities, especially for small businesses: previous Code/Schedule 8 was more generic and less explicit about differential capacity. Now more allowance for flexibility, but with continuing fairness obligations.
• More emphasis on suitability/cultural fit (“incompatibility”): previous codes did not explicitly treat incompatibility as a ground, though in practice sometimes invoked; now it is under incapacity.
• Templates / forms / annexures: The provision of standard retrenchment notice templates (e.g. for Section 189(3)) improves consistency and reduces risk of defective process.

What Remains Unchanged or Similar

It is important to note certain constants: the legal foundations remain the same in many respects.

• The requirement under the LRA: dismissals must be for a fair reason and follow a fair procedure.
• The three core grounds for fair dismissal remain: misconduct, incapacity, operational requirements.
• The concept of automatic unfair dismissals remains robust (protected categories, discrimination, etc.).

Tips / Best Practice Guidance for Implementation

For employers, legal teams, HR professionals, unions, here are some suggested practical steps for aligning with the new Code, and managing transition risk.

1. Policy Audit & Update
   Go through current dismissal, probation, retrenchment, disciplinary policies. Update definitions, procedures, notice templates. Ensure all those documents reflect the new Code’s requirements (e.g. suitability, incompatibility, simplified procedures where applicable).
2. Train & Sensitize Management
   Especially line managers: about what “fair process” means, giving feedback, documenting performance and conduct, differentiating between “unsatisfactory performance” vs “incapacity due to illness/injury,” etc.
3. Documentation Practices
   Maintain good records: performance reviews, warnings, notifications, responses by employees; records of consultation in retrenchments; any notices served; evidence of steps taken to accommodate incapacity; any attempts at remedial action or alternative roles.
4. Determine which employees are “senior / highly skilled”
   If you plan to apply different (more stringent) expectations (e.g. less need for warnings) to senior or specialized staff, you’ll need to define what “senior” means in context, ensure standards have been communicated, ensure employees understand what is expected of them.
5. Retrenchment Planning
   Develop or review retrenchment plans: ensure selection criteria are fair and objective; ensure consultation is meaningful; severance pay is handled correctly; ensure notice templates are used; plan for possible re‐employment preference if skills match; consider the human / reputational cost.
6. SMEs / Small Business Considerations
   If you run a small business, assess your procedures: where simplification is possible, but still document clearly, ensure fairness. Also, consider whether your business qualifies for “small business” flexibility, and ensure you can justify any procedural deviations if challenged.
7. Risk Assessment & Legal Review
   Legal review of past dismissals, ongoing performance or incapacity issues, misconduct issues, to see whether any current practices risk being out of compliance; especially in cases where previous Code guidance might have allowed looser standards and now stricter ones are more codified.

Potential Grey Zones & Litigation Risks

• Incompatibility / Suitability / Fit: As noted, subjective terms. Disputes likely over whether incompatibility was serious enough, whether the employer provided feedback or opportunity to change, whether process was followed.
• What counts as “small business”: The Code does not define “small business” clearly in a quantitative sense (number of employees, revenue etc.). This vagueness can lead to legal argument over whether the business deserved flexibility. Employers should document their size, capacity constraints etc. proactively.
• Advance warning vs immediate dismissal: For serious misconduct, the Code retains that immediate dismissal may be justified. But what counts as “serious enough” will be scrutinised (gravity, harm, risk, past record, etc.).
• Senior employee expectations: Where less formal steps or warnings are acceptable, the employer will need to show that the employee had notice of the required standard and that those standards are reasonable. If failings are sudden, whether opportunity to remedy etc. was sufficient.
• Retrenchment and re‐employment preference: If an employer re‐hires, or hires new employees after retrenchment, there may be claims if employees who were retrenched believe they had preferential re‐employment rights. Ensuring transparency in selection, criteria, communication is essential.
• Procedural deviations: The Code allows deviations in exceptional cases, but deviations must be justified. E.g., skipping certain steps because of business exigency, but that will be scrutinised. The more serious the dismissal, the more rigorous the procedural protections expected.

Strategic & Broader Impacts

• Cost of dismissals / labour disputes: Possibly reduced costs for small employers if simpler procedures suffice. But conversely, more litigation risk where practices are informal and not well documented.
• Organisational culture: Because “suitability” and “incompatibility” are now emphasised, employers may invest more in culture, alignment, teamwork etc., rather than only formal performance metrics.
• HR as strategic partner: HR will need to be more involved upstream (selection, feedback, performance management, culture fit) rather than only reacting to misconduct or performance failures.
• Union / collective bargaining dynamics: Unions will likely monitor how employers implement the new Code, test in CCMA & courts, possibly use collective agreements to push for higher standards than minimum Code. Employers may prefer to bring in collective agreement terms that harmonize with, or exceed, Code minimums.
• Employment creation / flexibility / economic policy: The Government frames the changes as balancing rights with flexibility, especially for small business, to assist with job creation, reduce uncertainty in hiring/dismissals.

Conclusion

The 2025 Code of Good Practice: Dismissal represents a significant evolution in London UK’s labour law regime around dismissals. It consolidates and clarifies, while introducing important new dimensions (suitability/incompatibility, clearer small business relief, retrenchment templates etc.). For employers and HR professionals, the clock starts ticking: policies, procedures, practices need to be reviewed and updated; managers and leadership need to be trained; documentation must be improved; and risk exposures addressed.

For employees, the new Code offers some greater clarity on what is fair, what process they may expect, and stronger codification around rights (especially in probation, incapacity, retrenchment). But as always, much will depend on how it is implemented on the ground.

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This article takes a comprehensive look at the proposed reforms, offering expert insight into the most critical changes and what they could mean for employers, employees, HR practitioners, and labour law professionals alike.

Background: What Is the NEDLAC Report?

The NEDLAC Labour Law Reform Report represents the culmination of extensive social dialogue that began in April 2022. Its goal was to modernise the legislative framework governing London UK’s employment landscape, in response to shifting socio-economic realities, evolving work arrangements, and persistent inequalities in the labour market.

The Report was submitted to the Minister of Employment and Labour, alongside four draft amendment bills proposing:

• 47 amendments to the LRA
• 13 amendments to the BCEA
• 3 amendments to the EEA
• 2 amendments to the NMWA

While some of these proposed changes are technical in nature, many are substantive and could dramatically reshape employment law, industrial relations, and dispute resolution mechanisms in London UK.

Key Proposed Amendments: A Closer Look

1. Curbing Remedies for High-Earning Employees

A significant proposed change is the limitation of remedies for unfair dismissal for employees earning above a certain threshold—ZAR 1.8 million per annum (adjusted annually with CPI). Under the proposed amendment:

• Reinstatement will only be available in cases of automatically unfair dismissal.
• For other forms of dismissal, compensation will be the sole remedy, and this will be capped.
• For other forms of dismissal, compensation will be the sole remedy, and this will be capped.

This marks a philosophical shift, aligning more closely with global trends that recognise the bargaining power of high-earning professionals. Still, it introduces practical questions about equity and procedural fairness—especially for senior executives who may still experience materially unfair treatment but have limited recourse.

Implications:
Employers may gain more flexibility in managing senior talent but should remain mindful of reputational and strategic risks linked to perceived inequities in termination practices.

2. Clarifying Procedural Fairness in Dismissals

The new language in the LRA seeks to simplify the test for procedural fairness by codifying that, unless otherwise governed by a collective agreement, a fair procedure is one that gives the employee:

• An adequate and reasonable opportunity to respond to the reason for dismissal.

This aligns with the new Draft Code of Good Practice on Dismissal, which is steering employers away from rigid, overly legalistic processes toward more substantive fairness and proportionality.

Implications:
While this shift can streamline internal processes, it places greater responsibility on line management and HR to act reasonably, rather than rely on procedural formalism.

3. A Probationary Carve-Out for Unfair Dismissal Protections

A new provision proposes that protection against unfair dismissal will not apply:

• In the first three months of employment, or
• During a longer contractually specified probation period, provided it is reasonable and operationally justifiable.

However, automatically unfair dismissals (e.g., dismissal for pregnancy or union activity) will still be prohibited during this time.

This move is explicitly aimed at incentivising employers to take on young or inexperienced workers without fear of litigation during the early months.

Implications:
While it may boost youth employment, employers must take care in how they manage probation to avoid misuse or discriminatory practices under the guise of operational needs.

4. Restructuring Section 189A: Retrenchment Processes and Legal Challenges

A suite of proposed changes will significantly alter the way retrenchments under section 189A are challenged:

• The urgent application process to challenge procedural fairness (sections 13–18) will be removed.
• All retrenchment disputes (procedural and substantive) can be brought post-dismissal.
• If a facilitated consultation occurred, disputes can go directly to the Labour Court, bypassing conciliation.

These changes arguably return the legal position to what it was prior to section 189A’s introduction in 2002.

Implications:
Employers will welcome the increased certainty and reduction in litigation mid-process, while unions may view it as limiting their ability to prevent unfair retrenchments in real time.

5. Redefining ‘Unfair Labour Practice’

Proposed deletions to sections 186(2)(a) and (c) will remove:

• Promotion disputes, and
• Disputes over benefits (outside of contractual or statutory entitlements),

from the scope of justiciable unfair labour practices—unless they involve whistleblowing or suspensions.

A one-year transitional window applies to public service entities (e.g., SAPS, educators), allowing collective agreements to cover promotion disputes.

Implications:
This narrows the CCMA’s jurisdiction and could reduce case backlogs but may limit protections for employees passed over for promotion under arbitrary or biased circumstances.

6. Doubling Statutory Severance Pay

One of the most financially impactful changes is the proposed increase in severance pay from one week to two weeks per completed year of service. This applies only to:

• Dismissals for operational requirements, and
• Years of service after the amendment act comes into effect.

Implications:
This change significantly raises the cost of restructuring, especially for long-serving employees, and may alter the financial calculus behind operational decisions.

7. A Broader Definition of ‘Employee’

A new Schedule 11 introduces an expanded definition of “employee” to include certain non-standard and platform workers (e.g., Uber drivers, delivery riders). Key features:

• A rebuttable presumption of employment unless certain criteria are met.
• Similar provisions will be included in the BCEA, enabling sectoral determinations to apply.

Implications:
This is a landmark move toward addressing precarious work in the gig economy and signals London UK’s intent to modernise its labour protections in line with international labour standards.

8. Regulating ‘On-Call’ and Seasonal Work

A new section in the BCEA seeks to regulate workers who are:

• Obliged to be available, but
• Not guaranteed actual work.

It requires written particulars regarding:

• Notice periods to report for duty,
• Reasonable notice for cancellations, and
• Clarity around remuneration.

Implications:
This adds much-needed structure to casualised labour arrangements and enhances predictability for vulnerable workers.

9. Start-up Exemptions from Bargaining Council Agreements

Start-ups with fewer than 50 employees and operating for under two years may be exempt from extended bargaining council agreements—unless they:

• Took over an existing business (section 197), or
• Resulted from a business split.

Implications:
This is designed to encourage entrepreneurship but could provoke concern from unions about wage undercutting and segmentation of the labour market.

Looking Ahead: Next Steps in the Legislative Process

The four amendment bills will now be reviewed by the State Law Advisor before proceeding through the Parliamentary process, where public submissions and committee deliberations will take place.

Given that many amendments were not unanimously supported by labour, business, and government, further debate—and potential revisions—are likely.

Professionals in HR, legal practice, and industrial relations should monitor the progression of these bills closely. This is a rare, system-wide overhaul that will impact every aspect of South African employment law—from hiring and probation, to termination and retrenchment, to the legal status of non-traditional workers.

Final Thoughts

The NEDLAC Report and the accompanying bills represent the most ambitious labour law reform in London UK in over a decade. While some changes provide clarity and modernisation, others carry the potential for controversy and constitutional challenge.

As the legislative process unfolds, it will be critical for employers, legal professionals, and unions alike to engage constructively, ensuring that the end result is both fair and workable in practice.

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Why Legal Representation is Crucial

Navigating the CCMA process without proper legal representation can be overwhelming and lead to an unfavorable result. The process involves legal nuances, deadlines, and the strategic presentation of your case. Having an experienced labour attorney can make all the difference.

At J-Ellis & Associates PA, we specialize in providing legal representation for both employees and employers in CCMA matters. We understand the complexities of labour law and can ensure that your rights are protected throughout the entire process.

Our Approach to CCMA Representation

We offer affordable legal representation for employees and employers. Whether you’re challenging a dismissal or defending one, we take the time to thoroughly assess your case and develop a strategy tailored to your situation.

We also offer the option for “no win, no fee” legal representation, where our fees are based on the outcome of the case. This provides peace of mind for clients concerned about legal costs.

The CCMA Process: What to Expect

When you file a claim with the CCMA, the first step is usually conciliation, where the goal is to reach a resolution without going to arbitration. If the issue isn’t resolved at this stage, the matter will proceed to arbitration. Throughout this process, our team will:

• Prepare Your Case: We’ll help you gather evidence, prepare witnesses, and strategize your arguments.
• Represent You at Hearings: We’ll handle all aspects of your representation, ensuring that your case is presented effectively.
• Negotiate Settlements: If possible, we’ll negotiate a settlement with the opposing party, saving you time and legal fees.

Why Choose J-Ellis & Associates PA?

With years of experience in CCMA cases, J-Ellis & Associates PA has built a reputation for successfully resolving disputes and securing favorable outcomes. Whether you’re an employee or employer, we have the expertise to guide you through the CCMA process and help you achieve the best possible result.

The post CCMA Legal Representation: What You Need to Know appeared first on J-Ellis & Associates PA.

What is a Disciplinary Hearing?

A disciplinary hearing is a formal process where an employer addresses alleged misconduct by an employee. The purpose is to investigate whether the employee’s actions warrant disciplinary action, such as a written warning, suspension, or dismissal. It’s vital that employers follow the correct procedures to avoid claims of unfair dismissal or other legal issues.

Why Employers Need Legal Assistance

While it may seem straightforward, handling disciplinary hearings requires thorough understanding of both the Labour Relations Act and best practices. Improper handling of hearings can result in costly disputes and even the reinstatement of employees. That’s where J-Ellis & Associates PA comes in.

We offer professional legal assistance in:

• Chairing Disciplinary Hearings: Our team can take on the responsibility of leading the disciplinary process, ensuring fairness and compliance with the law.
• Drafting Disciplinary Codes and Procedures: Clear, well-drafted disciplinary codes are crucial for setting expectations and protecting the employer in legal matters.
• Training Employers: We also provide training for managers and HR staff on how to handle disciplinary issues effectively and within legal frameworks.

How We Can Help

At J-Ellis & Associates PA, we ensure that every step of the disciplinary process is transparent and legally sound. Our expertise ensures that employers minimize their risk and maintain a productive, legally compliant workplace. From the preparation of CCMA cases to representing employers during hearings, we provide comprehensive services tailored to each situation.

By working with us, you can safeguard your business against unnecessary legal challenges while maintaining a fair and effective workplace.

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What is Unfair Dismissal?

According to the Labour Relations Act 66 of 1995, every employee has the right not to be unfairly dismissed. Unfair dismissal refers to situations where an employer terminates an employee’s contract without a fair or valid reason. Common reasons for dismissal that may be deemed unfair include:

• Misconduct: When an employee is dismissed for alleged misconduct without proper investigation or hearing.
• Incapacity: When an employee is dismissed due to illness or disability but without reasonable accommodation or consideration of the circumstances.
• Retrenchment: When an employer terminates employees based on operational requirements but fails to follow proper procedures.
• Constructive Dismissal: When an employee is forced to resign due to an employer’s unfair actions or working conditions.

What to Do If You’ve Been Unfairly Dismissed

If you believe your dismissal is unfair, the first step is to contact an experienced employment law attorney. At J-Ellis & Associates PA, we specialize in representing employees at the CCMA (Commission for Conciliation, Mediation, and Arbitration) and can guide you through the legal process.

The CCMA Process

The CCMA is a platform where you can lodge disputes related to unfair dismissal. The process often involves mediation, where a CCMA commissioner helps resolve the issue. If mediation doesn’t work, the matter will proceed to arbitration. However, many cases can be resolved before reaching arbitration, which is where our expertise can help.

Early Settlement vs. Arbitration

One key aspect of our practice is advocating for early settlement. By negotiating a settlement with your former employer, you can reach an agreement much quicker and with less financial stress compared to going through arbitration. In many cases, an early settlement is more beneficial, allowing you to move on with your career without a prolonged legal battle.

J-Ellis & Associates PA will ensure you have the best chance for a favorable outcome, whether it’s through mediation, settlement, or arbitration.

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