Goodbye Schedule 8: Understanding South Africa’s New Code on Dismissals

South Africa has replaced the long-standing Schedule 8 with a new, consolidated Code of Good Practice: Dismissal. It was published in Government Gazette No. 53294 on 4 September 2025 and took effect immediately on publication. The new Code repeals both Schedule 8 and the separate Code of Good Practice on Dismissal Based on Operational Requirements (1999).

Why this change matters

For the first time, guidance on misconduct, incapacity (including poor performance and ill-health) and operational requirements (retrenchments) sits in one place. That consolidation should make it faster for HR and managers to find the right process and reduce CCMA risk that often comes from mixing up the routes to dismissal. The Department’s notice makes the legal effect plain: the Code is issued under section 203(2A) of the LRA and repeals the older instruments from the date of publication.

The Code also speaks directly to context and proportionality: it calls itself “intentionally general,” acknowledges that small businesses face practical constraints, and allows justified departures from the norms where appropriate. That signals a more practical, de-criminalised approach to procedural fairness.

What’s new (and useful) in the 2025 Code

• 1) One Code to rule them all
  Previously, employers had to cross-reference Schedule 8 for misconduct and incapacity, then reach for a separate 1999 code for retrenchments. The new Code consolidates the guidance so that discipline, performance/ill-health, and retrenchment are all covered under a single framework.
• 2) A clear fairness test
  The Code re-emphasises the simple fairness test: a dismissal is fair only if it is for a fair reason and in accordance with a fair procedure—with the three familiar grounds of conduct, capacity, and operational requirements expressly referenced. For automatically unfair dismissals, the LRA still governs.
• 3) Practical flexibility for small businesses
  Small employers aren’t excused from fairness, but the Code says their realities must be taken into account. It cautions against reading the Code as forcing impractical, time-consuming investigations or HR-heavy processes when that would be unrealistic—especially where the employer lacks a dedicated HR function. This is a helpful anchor when defending streamlined but fair processes.
• 4) Probation with structure (and guardrails)
  Probation remains a legitimate tool—but the Code stresses reasonable guidance, training and time to improve. It also recognises that non-confirmation after probation can be justified on less compelling reasons than a post-probation dismissal—provided the employer has given real support and an opportunity to respond. Misusing probation to avoid permanence may itself be an unfair dismissal.
• 5) Incapacity now explained in fuller terms
  The Code provides practical guidelines for incapacity, covering poor performance (post-probation) and ill-health/injury. Current commentary also notes the Code’s explicit recognition of “incompatibility” within the incapacity family—and the importance of support and consultation before contemplating termination.
• 6) Industrial action and ultimatums
  The misconduct part retains guidance on dismissals related to industrial action, and employer commentary highlights the Code’s direction on unprotected strikes—in particular, issuing clear ultimatums and allowing sufficient time to comply before dismissal is considered.
• 7) Retrenchment guidance pulled into the Code
  Part G brings operational requirements into the same document, including: (i) the need for a fair reason, (ii) consultation aimed at consensus, and (iii) a fair procedure with written notice, good-faith engagement, objective selection criteria, and the statutory severance framework under the LRA. An Annexure A provides a model “Notice of possible retrenchments”, which is especially useful for section 189(3) notices.

What stays the same

• Two-limb test: reason + procedure are still required. Dismissal remains a last resort when continued employment is intolerable or impractical after fair steps have been taken.
• Consistency and context: like-for-like misconduct should attract comparable sanctions, but context matters—especially where trust is irreparably damaged. (This approach is reflected in the leading employment-law analysis of the Code.)

What this means for employers

Start by giving your paperwork a quick spring-clean. Anywhere your policies or templates still refer to “Schedule 8”, update them to the new Code of Good Practice: Dismissal. Align your disciplinary, performance/ill-health and retrenchment procedures with the Code’s structure and language. If you’re dealing with possible retrenchments, build Annexure A into your pack so your section 189(3) notices cover the right ground from the outset.

Next, bring your managers up to speed. A short refresher goes a long way: help them tell the difference between misconduct, incapacity (poor performance or ill-health), and operational requirements, because the route you choose determines the steps you must follow. Emphasise that the Code expects fairness, not formality for its own sake—especially in small teams without HR. Show them how to support under-performance in a practical way (set expectations, coach, allow time, review) and how to run an informal but fair hearing where the employee can respond.

Take a closer look at probation. It remains a useful tool, but it’s not a shortcut to dismissal. Set clear outputs up front, diarise check-ins, and keep a simple record of the guidance and training you’ve provided. If you’re considering non-confirmation, invite the employee’s representations and explain why more time is unlikely to change the outcome. In CCMA disputes, that paper trail often makes the difference.

If you face industrial action, prepare your playbook now rather than during a crisis. The Code expects a plain-language ultimatum that spells out what must happen, by when, and what the consequences will be if employees don’t comply. Give a reasonable period, communicate clearly (and in writing), and keep notes of what was said and when. Those basics matter if dismissals are later challenged.

For retrenchments, do the hygiene work before you issue any notices. Pull together your business rationale, record the alternatives you considered, and draft your proposed selection criteria. Use Annexure A as your starting format for the section 189(3) notice, then consult in good faith on all the required topics. Throughout the process, document the discussions and apply your criteria consistently. That combination—good reasons, a fair process, and a clean record—will put you on a solid footing if your decision is scrutinised.

Key takeaways

The new Code doesn’t rewrite the LRA—it clarifies and consolidates what fairness looks like in everyday workplace decisions, and it gives smaller employers explicit recognition, allowing them to run workable processes without tripping over formality. Get your policies and templates aligned now, train your frontline managers, and document the support you provide before moving to dismissal. At Cuthbertson & Palmeira Attorneys, we can assist you by updating the necessary paperwork to ensure your business is aligned with the recent legislative developments, as well as any other general labour related concerns.