What is Unfair Dismissal?
Unfair dismissal of an employee takes place if the dismissal is done for reasons other than what is considered fair by the CCMA, and Bargaining Council. An employer can dismiss an employee for misconduct, his inability to do the job employed for and for operational reasons such as the need to retrench workers according to requirements of the Labour Relations Act.
What is seen as misconduct?
The Labour Relations Act explains gross misconduct as actions, such as physically assaulting a colleague, client or the employer, being grossly dishonest, endangering the lives of the public, colleagues or the employer, and wilfully damaging the employer’s property.
The employer must be able to prove the misconduct by the specific employee and show that the employee was aware that the action was against the employer’s rules, and that the rule was reasonable and consistently applied. The misconduct must have been serious enough to justify dismissal. If the employer cannot prove all of the above, he will be deemed guilty of misconduct.
Note that even with all the above proven, the arbitrators will still enquire whether the reason for employment termination is fair. “How long has the employee worked for the company?” and “Was it a repeat offence?” are questions to be expected. The employer must also show that the action of the employee has made a current or future employment relationship intolerable
If the employer is satisfied with the reasons being in line with what the Law requires, including the mitigating circumstances, he must follow the correct procedure for dismissal, which entails a disciplinary hearing that can be informal or formal. This will provide the employee the opportunity to respond to the charges. If the employer is guilty of unfair dismissal he can be held liable for payment of the employee’s salary for a year.
Note the Labour Relations Act, does not apply to members of the National Intelligence Agency, South African Secret Service, and the National Defence Force. All other employers must follow the procedures as stipulated by the Act in the dismissal of employees.
What is a dismissal?
Dismissal is when the employer terminates a contract job with or without notice, or doesn’t renew the contract as agreed or at least offers the opportunity to renew on less favourable terms. It also includes the situation where the employer doesn’t give the employee the opportunity to return to employment after maternity leave or where the employee has been absent for up to a month before or two months after the birth of her child. It includes a situation where the employer dismisses several employees, but only reinstates some of the dismissed employees.
Dismissal can also be when the employer makes it exceptionally uncomfortable or unbearable for the employee to stay with the employer or where an employee on contract ends the job without giving the employer proper notice, and finally – where a new employer doesn’t offer the same favourable work circumstances as offered by the old employer.
When can an employer not dismiss the employee?
The law states that dismissal is unfair when the employer dismisses the employee for intention to support or participate in protest or strike action. It is also unfair if the employee is forced to accept a demand or the worker who has been dismissed was exercising a right.
Employers cannot dismiss employees for intending to or becoming pregnant. Any type of discrimination against an employee in respect of gender, ethnic origin, social origin, race, religion, disability, age, colour, sexual orientation, belief, language, family responsibility, marital status, or conscience is strictly forbidden. If the employer is unable to prove that the worker has been dismissed for misconduct, for inability to do the job or dismissal was part of operational needs of the business, then it constitutes unfair dismissal.
Contact us for legal assistance, guidance and representation whether you are an employer or employee regarding unfair dismissal issues.
*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.