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.

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