When is it an Unfair Dismissal?
Employers often think that the following of fair procedures for dismissals are the only requirements needed to terminate employment contracts.
However, if you dismiss an employee for any of the reasons below, it becomes an automatic unfair dismissal, regardless of whether you followed fair procedure or not:
- The employee refuses to complete the tasks of a co-worker who is participating in a legal and protected strike.
- The employee is pregnant.
- You dismiss the employee for a reason that can be seen as discrimination.
- You buy a business as a going concern, but you have your own workers and do not wish to employ the existing employees at the business.
- An employee reports you to the authorities for a crime or non-compliance with labour regulations.
- The employee exercises their rights as stipulated in the Labour Relations Act and in response, you dismiss them.
- You wish to persuade the employee to accept a salary increase or any other demand in mutual interest, but the employee refuses to accept or comply with the new demand.
- The employee shows intention to join a protected strike or participates in a legal strike.
If you dismiss an employee for any of the above reasons, it is automatically an unfair dismissal. The court can rule that you must reinstate the employee or can demand that you must pay the employee compensation for up to 24 months of their earnings. Should the employee have a gross salary of R20 000 per month, then you may end up paying up to R480 000 in compensation.
Fair Reasons for Dismissal
Of course, you still have the right to dismiss an employee, but only for one of the fair reasons. A dismissal for any reasons other than the ones listed below is unfair:
- The employee’s capacity to do their job according to the requirements of the employment contract.
- Misconduct where the employee breaches an important rule.
- Operational requirements where you need to retrench employees, in order for the business to operate profitably.
Even if you dismiss an employee for one of the fair reasons, but follow incorrect procedures in doing so, it is still an unfair dismissal.
The dismissal can only be fair if the termination of employment is for a fair reason and you can prove substantive fairness. You must be able to prove, in the instance of misconduct, that the employee is guilty. The employee must be aware of the rule and the penalty associated with the misconduct. The rule must be reasonable and applied with consistency. The misconduct must be severe enough to warrant dismissal, instead of another penalty.
Contact us on (011) 234 2125 for legal guidance regarding the correct reasons and procedures for dismissals in South Africa.
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. All information is relevant to the date of publishing – December 2017.