Unfair Dismissal

The Pitfalls to Avoid with Unfair Dismissals

If an employer is found guilty of a procedural or substantial unfair dismissal of an employee, then according to the Labour Relations Act, the employer may be required to pay up to 12 months’ remuneration as compensation for the employee. The remuneration must be equal to the remuneration at the time of the unfair dismissal.

Considering the above, you can understand why it is important as an employer to seek legal guidance before dismissing an employee, so as to ensure that you dismiss the employee for a fair reason and according to fair procedures.

The act also stipulates that a dismissal is automatically unfair if you dismiss a worker for partaking or supporting a protected strike or protest action, or if you dismiss the employee for refusing to perform the duties of an employee who is partaking in such a strike or protest action.

It is also considered an automatic unfair dismissal if you dismiss a worker with the purpose of forcing the worker to accept a demand in the mutual interest of you as the employer and the worker. You may not dismiss an employee for intending or for being busy with an action against you in accordance with the Labour Relations Act. If you dismiss the employee for intending to become pregnant or for being pregnant, it constitutes as an automatic unfair dismissal.

Any dismissal because of a business transfer from one business entity or person to another is automatically deemed as an unfair dismissal. The same applies if you dismiss an employee for any discriminatory reason, such as religion, sex, culture, language, family responsibility, race, gender, disability, age, ethnic origin, political view, marital status, or conscience. You may also not dismiss an employee for making a disclosure according to the stipulations of the Protected Disclosures Act.

A dismissal is also unfair if you dismiss an employee for misconduct or the inability to perform duties if you do not have proof of the misconduct or inability. Keep in mind that if the dismissal is not done in accordance with the regulations of the Labour Relations Act, the employee can still claim unfair dismissal.

It is your duty as the employer to read the Labour Relations Act and the Basic Conditions of Employment Act. You cannot claim ignorance. It is also important to keep up to date with the changes in legislation. We understand that you want to focus on business growth and as such, do not always have the time and resources to stay up to date with the changes in labour laws. To this end, we recommend making use of our services as related to the drafting of employment contracts, taking of disciplinary steps against employees, and dismissing employees, so as to ensure compliance with legal requirements.


What Is a Dismissal?

A dismissal is when you, as an employer, end an employment contract with or without the required notice or do not renew a job contract as previously agreed, or do not allow an employee to return to work after an absence of four to eight weeks after the birth of her child or after her maternity leave. It is also when you end the employment contract because of business restructuring or operational reasons.

The law provides that the dismissal is fair if the correct procedures are followed and if done for reasons as allowed by the Labour Relations Act. It can be for misconduct, the inability of the employee to perform job duties according to the requirements of the job, or if the employee has reached the age at which he or she should retire.


How to Prevent Disputes

Seek legal guidance when you want to dismiss an employee. You can, for instance, ask for arbitration assistance in disputes regarding an employee’s abilities or conduct. Keep in mind that arbitration is voluntary and the employee must consent to such in writing. The employee has the right to be represented by a coworker, director, member of the employee’s registered trade union, or, if you so agree, by an attorney.

The employee can refer an unfair dismissal dispute for conciliation by writing to the CCMA or a relevant bargaining council. If the dispute is not resolved, the CCMA can upon the worker’s request arbitrate. If it is an automatic unfair dismissal, then the employee can refer the matter directly to the Labour Courts.

Make sure that you follow the correct dismissal procedures and have legal help available to assist in defending allegations of unfair dismissal. Call our attorneys on 011 234 2125 for professional legal guidance.


Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – January 2019.

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