Unfair Dismissal in South Africa

 

Unfair Dismissal in South Africa

When it comes to employee dismissal, there are generally two factors that determine whether it becomes an unfair dismissal.

These are known as:

  • Substantive fairness; and
  • Procedural fairness

Substantive Fairness

This means that there is a fair or valid reason for the employer to dismiss an employee. Substantive reasons can include:

  • Conduct or Misconduct - From poor timekeeping to gross misconduct such as theft or discriminatory behaviour
  • Capability or Poor Performance - Capability refers to an employee’s ill health which hinders their ability to carry out their job. Poor performance refers to the employee’s inability to perform their duties to a satisfactory standard
  • Redundancy - This follows when an employer requires fewer or no more employees
  • Statutory Illegality - When an employer will be breaking the law by continuing to employ someone
  • Some Other Substantial Reason (SOSR) - Dismissals that do not fit into the other four categories

Procedural Fairness

Procedural fairness refers to an employee’s right to undergo certain procedures before dismissal is finalised.

Despite there being substantive reasons for dismissal, employers are legally obliged to follow steps or procedures that aim to provide the employee with an opportunity to retain their employment.

What is Unfair Dismissal in South Africa?

According to the Labour Relations Act, any of the following acts by an employer are considered grounds for unfair dismissal:

  • A woman who is not permitted back into her placement after returning from maternity leave
  • Termination of employment without notice
  • A contract employee whose fixed-term contract is abruptly ended, renewed on unfavourable terms or not renewed in cases where the contract employee reasonably expected the contract to be renewed
  • Dismissal of numerous employees followed by an offer to re-employ only one or some of the dismissed employees
  • Dismissal of employees for operational reasons without severance pay of a minimum of one week’s remuneration for every year of employment
  • A new employer takes over the business and changes the conditions of employment or stops paying the employee the same wages
  • Dismissal for employee taking part in a protected strike
  • Failure to perform the work of a colleague who is partaking in a strike
  • On grounds of discrimination

Van Deventer & Van Deventer Incorporated – Attorneys in Johannesburg and Cape Town

In order for a dismissal to be fair, employers are legally required to adhere to substantive and procedural fairness guidelines.

The Labour Relations Act serves to protect the employee’s rights according to the constitution, preventing them from any suffering caused by unfair dismissal in South Africa.

Our attorneys provide legal advice and assistance for employers and employees to ensure that dismissal is fair and compliant with the relevant legislation. Contact us for more information.

[Title]Mandatory COVID-19 Vaccination – Your Rights as an Employee

Now that the Department of Labour issued a Directive on 11 June 2021 with regards to mandatory vaccination policies in the workplace, it is crucial for employees to know what their legal position is in this situation. This article will attempt to present a guide of general application to employees so as to outline what their legal position is in terms of mandatory vaccination in the workplace.

Read More ...
Posted by Cor van Deventer on Wednesday, August 4, 2021 Views: 166


[Title]Resurgence of COVID-19 - Lockdown Restrictions & the Workplace

South Africa moved back to Adjusted Level 3 of lockdown restrictions at midnight on 28 December 2020. This was in response to the resurgence of the COVID-19 pandemic albeit in a newly discovered variant which, experts say is more infectious.

Read More ...
Posted by Cor van Deventer on Monday, January 4, 2021 Views: 260


CloseCOVID-19 Corona Virus South African Resource Portal