Understanding Employment Law in South Africa Regarding Fair and Unfair Dismissals
Understanding employment law in South Africa is essential, whether you are an employee or an employer. Our labour law attorneys have a thorough understanding of employment law in South Africa and represent employers, employer organisations, labour unions, and employees. As such, we have an understanding of both sides of the employment spectrum. We briefly look at automatic unfair dismissals to help employers and employees in understanding employment law in South Africa regarding unfair dismissals and for which reasons employees may not be dismissed. Regardless of whether the employer conducts a disciplinary hearing or not, or whether the procedure for dismissal is fair or not, if the employment contract is terminated for any of the reasons below, it is automatically an unfair dismissal according to the labour laws of South Africa.
It is an unfair dismissal if an employer dismisses an employee for any of the following reasons:
- Refusal of the employee to do the work of another worker who participated in a lawful strike.
- Participation or the intention to participate in a lawful strike.
- Dismissing of a female employee because she is pregnant.
- Refusal of the employee to accept changes in the work contract.
- Participation in lawful union or employee organisation activities.
- Dismissing an employee with the aim of forcing them to meet an employer demand.
- Dismissing an employee for exercising their right as allowed for in the Labour Relations Act.
- Dismissal on the grounds of a discriminatory reason like gender, age, language, skin colour, or ethnicity.
- Dismissal because the employee reported the employer for a criminal activity.
- Dismissal because of a company merger.
- Refusal of the employee to engage in a criminal activity.
It is also important to understand that, even if the employer dismisses an employee for fair reasons, the employer must still follow the correct procedures for it to be a fair dismissal. As such, it is imperative to get legal guidance from labour law attorneys who have a thorough understanding of employment law in South Africa. A dismissal’s fairness is determined by its substantive fairness and procedural fairness. This means that the dismissal must be for a fair reason and appropriate for the specific situation, and under the particular circumstances. Fair reasons for dismissal include employee misconduct, incapacity to perform the specific tasks required for the particular job role, and retrenchment.
For dismissal based on misconduct, the offence must be serious enough to warrant dismissal. If dismissal is for incapacity, the employee must be unable to perform their job due to a disability or complete incompetence. Note that, in case of the latter, the employer must, at the very least, first provide training, mentoring, or counselling to help the employee become competent in doing the required tasks. Retrenchment is allowed if the employer is reducing staff members or restructuring the job role.
The procedure followed for dismissal must be fair. In this sense, the employee must always have the opportunity to explain their side of the story. A hearing must be conducted to ensure that the employee can defend themselves against allegations. It is not permissible to simply terminate the employment contract based on hearsay or without proper evidence of misconduct. For every fair reason, there is a fair procedure to follow before the employee can be dismissed. The employer cannot, for instance, dismiss an employee for misconduct such as breaking a rule of conduct, if that rule was not necessary, or if the employee was not aware of the rule, or could not reasonably be expected to have known about the rule, and if the rule has not been applied consistently. If the reason is not sufficient for a dismissal, and the misconduct could have been handled through other disciplinary action, the dismissal is unfair.
Even if the employee is dismissed for fair reason, the employer must still pay the relevant wages and notice remuneration, leave pay due, and any payment in kind due. Once again, it is imperative to discuss fair reasons with labour attorneys to ensure a better understanding of employment law in South Africa regarding fair reasons for dismissals.
Contact us on (011) 234 2125 to help you get a better understanding of employment law in South Africa regarding dismissals and the procedures that must be followed.
NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
