Unfair Dismissals – Know your Rights as an Employee - South Africa

Many dismissed employees are left wondering if their dismissal is unfair in terms of our legislation. It is always important to know your rights and what your options are if you are one of those unfortunate individuals who find themselves suddenly unemployed and struggling to make ends meet.

The Labor Relations Act (“LRA”) has a Code of Good Practice for Dismissals that employers must follow. The 'fairness' of any dismissal is decided in two ways – substantive fairness and procedural fairness.

Substantive fairness can be determined by asking “was there a 'fair' reason to dismiss the employee?” and “was dismissal appropriate under the circumstances?”. The employer must therefore always have a proper and fair reason for dismissing the employee, for example misconduct, incapacity or redundancy.

Regarding procedural fairness, the employee must always have a fair hearing before being dismissed.
An unfair dismissal according to our Labor Relations Act is any of the following acts by an employer: -

1. An employer terminates a contract of employment with or without notice

With notice means the employer informs the employee to leave work after working for the required term of notice as prescribed in the contract of employment. Without notice means the employee leaves immediately and is paid out instead of getting notice.

This is also referred to as a summary dismissal which might take place where an employee is guilty of a serious crime regarding his employment, for example stealing from the workplace, but it will still be unfair procedurally if a hearing has not been held before the dismissal.

2. A contract employee whose fixed-term contract is suddenly ended or renewed on less favorable terms or not renewed where the employee had a reasonable expectation that the contract would be renewed because it has often been renewed previously.

3. A woman who is refused placement into her position after her maternity leave.

4. An employer dismisses a number of employees for some reason and offers to re-employ one or some of the dismissed employees but not all of them.

5. An employee who was forced to leave his employment because the employer made the working environment unbearable or intolerable.

6. The employee leaves work because a new employer has taken over the business and is not paying the employee the same wages or has changed the conditions of employment.

7. Employees have been dismissed for operational reasons (sometimes referred to as “retrenched”). In this case the employer must pay the employee severance pay of at least one week's remuneration for every full year that the employee worked for that employer.

The LRA now provides for a greater degree of discretion for arbitrators and judges when it comes to compensation but limits the maximum amount of compensation for an unfair dismissal at twelve months salary in the case of unfair dismissals.

ABOUT THE AUTHOR: Wesley Soutter
Wesley Soutter completed his legal studies at the University of Natal (Durban) in 2005. He thereafter completed his articles at an established Durban firm which was on the super-panel for numerous banks. He received extensive experience in family law, labor law, commercial litigation and corporate law. He was admitted as an attorney in the beginning of 2008 and practiced as an attorney until applying his corporate experience as a solid backing to his new focus of construction and engineering law at the top legal consulting firm in the country for the construction and engineering sectors.

Wesley’s experience has provide him with a notable advantage at his recent appointment as Partner and Director of SNA where he heads up the Construction, Corporate and Labor divisions.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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