From Schedule 8 to the New Dismissal Code: What Really Changes in Misconduct Cases?

John Botha
6 days ago
5 min read

Key differences: determining guilt and deciding sanction

For almost three decades, Schedule 8 of the Labour Relations Act has shaped how employers and commissioners think about misconduct, guilt, and dismissal. The new 2025 Code of Good Practice: Dismissal does not throw that framework away – but it does sharpen it, expand it, and make it far more usable in practice.

From loose principles to a practical diagnostic

Under Schedule 8, determining guilt in a misconduct case revolved around familiar questions:

Was there a rule?
Was the rule reasonable and known?
Did the employee breach it?
Is dismissal an appropriate response in the circumstances?

These principles were sound but written in broad narrative terms. Much depended on the experience of the chairperson or commissioner to turn them into a coherent, step‑by‑step enquiry.

The new Code keeps the same substantive test but converts it into an explicit diagnostic. It guides decision‑makers, in plain language, through a sequence of enquiries:

What is the rule, and why does it matter for the business?
How was it communicated, and could the employee reasonably have known about it?
What exactly happened, and what does the evidence show on a balance of probabilities?
Did the conduct cause, or could it reasonably have caused, harm?
Has the rule – and its consequences – been applied consistently to others?
Against that backdrop, is a finding of misconduct fair?

In short: where Schedule 8 provides principles, the new Code provides a roadmap. The underlying law is largely the same; the usability and structure are very different.

Intolerability unpacked, not abandoned

Schedule 8 famously states that dismissal for a first offence is only appropriate where the misconduct renders the employment relationship “intolerable” – with examples such as gross dishonesty or assault. That single word became a shorthand threshold in CCMA and Labour Court jurisprudence.

The new Code does not abandon intolerability; it unpacks it. Instead of relying on one word, it asks structured questions about:

The seriousness of the misconduct and the importance of the rule.
The actual or potential harm caused.
The nature of the position (especially where trust, safety or honesty are central).
The availability of corrective measures and alternatives to dismissal.
Whether the trust relationship can realistically be restored in light of the employee’s response.

The legal destination is the same – dismissal should be reserved for serious cases where continued employment is no longer reasonably possible – but the path is clearer and more transparent.

Sanction: from broad factors to a guided balancing exercise

Schedule 8 sets out classic sanction factors: the gravity of the misconduct, the employee’s length of service and record, personal circumstances, the nature of the job, and the context of the offence, with a reminder that similar cases should be treated consistently.

The new Code retains all of these but adds three important shifts:

More explicit structure
It creates a dedicated “guidelines for deciding a fair sanction” section and walks users through the factors to be weighed. This makes it easier for line managers to reason their way to a conclusion and for commissioners to see how the decision was reached.
Harm and rule importance front and centre
The new Code repeatedly stresses the importance of the rule to the workplace and the actual or potential harm flowing from the breach. A safety breach in a high‑risk environment, for example, is framed very differently from a minor time‑keeping lapse in a low‑risk role, even if both technically break a rule.
Trust, correction, and alternatives
Where Schedule 8 implies that remorse, insight, and corrective potential matter, the new Code spells it out: has the employee acknowledged wrongdoing, shown insight, and demonstrated a realistic ability to correct? Are there viable alternatives short of dismissal – such as warnings, training, closer supervision, transfer or demotion – that would still protect the employer’s interests?

Here, too, the law is evolution rather than revolution. But in practice, the new Code nudges decision‑makers towards more disciplined reasoning, more explicit consideration of alternatives, and more transparent explanations for why dismissal is, or is not, fair.

Consistency in both guilt and sanction

Under Schedule 8, consistency is primarily a sanction issue: similar offences should attract similar outcomes unless there is a justifiable distinction.

The new Code embeds consistency in both phases:

Was the rule itself consistently enforced?
Have other employees who breached the same rule, in comparable circumstances, been treated in a similar way – both in findings and in sanctions?

That shift pushes employers to keep better records, apply rules evenly, and be ready to explain any justified differentiation. It should, over time, reduce arbitrary or knee‑jerk outcomes.

Practical checklist questions under the new Code

These questions can be used as a simple checklist in hearings, investigations and awards.

A. Determining guilt – key questions

What exactly is the conduct we allege (who, what, where, when)?
Which workplace rule or standard covers this conduct?
Why is that rule important (safety, trust, operations, respect)?
How was the rule communicated, and could the employee reasonably have known about it?
What evidence do we have, and on a balance of probabilities, did the employee breach the rule?
Did the conduct cause, or could it reasonably have caused, harm to the employer, colleagues, customers or the public?
Has this rule – and similar breaches – been handled in the same way with other employees?
Has the employee had a fair opportunity to explain, and is there any credible defence, justification or mistake that means misconduct is not proven?

B. Determining sanction – key questions

How serious is the misconduct in context (nature of the act, importance of the rule, actual/potential harm)?
What is the employee’s length of service and disciplinary record?
Are there personal or situational mitigating factors that should soften the outcome?
Has the employee accepted responsibility, shown remorse, or demonstrated insight into the seriousness of the misconduct?
Is there a realistic prospect that the employee can correct their behaviour with guidance or a warning?
Have we properly considered alternatives to dismissal (counselling, written or final warning, training, closer supervision, transfer, demotion)?
After weighing all of this, can the trust relationship reasonably continue, or has continued employment become practically intolerable?
Have similar cases in our organisation attracted a similar sanction, and if not, is there a clear and fair reason for a different outcome?

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This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.