Why Understanding Unfair Dismissals Is Important for South African Employers
As an employer, you need to have an in-depth understanding of unfair dismissals to ensure that you do not find your company on the wrong side of a CCMA ruling following a complaint by an employee or employees regarding unfair dismissals. As labour law attorneys representing employees and employee organisations, employers and employer organisations, and unions, we have a thorough understanding of unfair dismissals, disciplinary hearings, and labour law lawsuits. We thus understand both sides of the coin and can help you ensure compliance with the labour laws of the country. We take a look at dismissals below to help you get a basic understanding of what they entail and also briefly discuss unfair dismissal pitfalls to avoid.
The law does not prohibit dismissals for fair reasons and according to fair procedures. The employer can dismiss a worker by giving appropriate notice. If this is the case, the employer must pay the employee the wages for the time that the employee worked, in addition to their leave pay balance. In this scenario, the worker does not get notice pay, because the employee works during the notice period. The employer can, as an alternative, request the employee to leave the place of employment immediately without any notice period. If this is the case, the employer must pay so-called payment in lieu of notice. It simply means that the employee is not required to work during the notice period.
Because of this, the employer must pay the employee for the notice time as agreed upon in the employment contract or better, according to requirements as stipulated by law. In this instance, the employer can pay a month’s pay instead of giving the employee a month’s notice of termination of employment. Such notice payment must include any leave pay balance, the notice period payment, and the payment for accommodation of the employee where applicable.
The employer can retrench the employee for valid reasons, such as restructuring of the company. Keep in mind that retrenchments must be made according to the requirements of the law. The employer cannot terminate employment with the excuse that retrenchment is needed if the employer immediately thereafter appoints another person from outside the company in that position. We recommend discussing retrenchment procedures and valid reasons for them with our labour attorneys to help give you a better understanding of how, if done wrong or for an unfair reason, such a retrenchment can be seen as an unfair dismissal.
If the employer retrenches an employee, the employee is entitled to severance pay for at least one work week’s wages for every full 12-month period worked at the specific employer. The severance pay must include value of payment in kind, which means that it must include the leave pay balance, notice pay or if the employment is terminated with immediate effect, then payment in lieu of notice, remuneration for hours worked, accommodation of the employee – where relevant, and the severance pay.
Pitfalls to Avoid
Employers should be careful of unfair dismissal practices. Keep in mind that a contract worker whose contract is not renewed, is terminated without notice, or is not renewed on the same terms (if the employee could reasonably expect renewal, because it was renewed before) can claim unfair dismissal. Likewise, an employee forced to resign because the employment environment became unbearable because of the actions of the employer towards the employee, and a female employee who is not allowed to return to work after maternity leave, have sufficient grounds for an unfair dismissal complaint at the CCMA or relevant bargaining council.
Avoid these pitfalls by understanding unfair dismissals and how to avoid them. Make use of our expertise in the above regard to ensure fair labour practices. Contact us on (011) 234 2125.
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.