Proposed Amendments to Labour Laws Could Make It Easier to Dismiss Employees

Proposed amendments to some laws governing labour relations in South Africa could make it easier to fire some workers.

The proposed amendments, which would affect a number of pieces of labour legislation, are currently out for public comment.

While some of the proposed amendments extend worker protections, they also make it easier to dismiss employees in the initial stages of employment.

Employers will now find it easier to dismiss workers who fail to meet the requirements of the job in the early stages of employment. During the first three months of employment, employees may be dismissed without the need for a formal hearing.

The proposed reforms also provide relief for smaller firms. New small businesses will be exempt from bargaining council agreements for their first two years of operation, reducing regulatory pressure during the early stages of establishing a company.

People earning more than R1.8 million a year and who have been unfairly dismissed will no longer be able to be reappointed to their old position, although they will still be entitled to other forms of compensation.

There are also amendments around paternity leave. They seek to establish a more balanced parental leave system by replacing the previous fragmented maternity and parental leave structure with a unified shared parental leave model.

Under this new system, a single or sole employed parent is entitled to four months of parental leave. In the case of two employed parents, they will share a total of four months and ten days, with flexibility for equal sharing or agreed arrangements. Priority will be given to what the amendments call the “birthing mother” in the absence of an agreement.

Some other protections for workers have been extended. Retrenchment pay has been doubled (from one week for every year worked to two weeks for every year worked).

Protections have also been extended for “gig” workers and people with similarly precarious employment.

“Gig” workers, such as delivery drivers and shift workers in the restaurant and hospitality sectors, among others, will now qualify for a range of protections broadly similar to those afforded to permanent employees. Central to this shift is a new presumption of employment. Unless an employer can prove that a worker is genuinely independent, meaning they are not controlled by the employer, not integrated into its organisation, and not performing work under its direction, the worker will be treated as an employee. These workers will also gain the right to join trade unions, bargain collectively, and participate in protected strike action.

According to Jaco Swart of the National Employers’ Association of South Africa, most of the proposed amendments were positive. His only note of caution was on the increase in mandatory retrenchment pay, but said that other proposals, such as the easing of rules around dismissing employees in their probationary period and clarity around parental leave following the birth or adoption of babies, were sensible.

Swart also said the proposal not to allow the automatic reinstatement of people earning more than R1.8 million should be welcomed.

South Africa has one of the highest unemployment rates in the world, with analysts saying one of the key contributing factors being the country’s rigid labour laws. These amendments could be the thin end of the wedge in a much-needed deregulation of the labour market.