Was your dismissal unfair? Know your Rights as an Employee in South Africa

Many dismissed employees are left wondering if their dismissal is unfair in terms of our legislation. It is very important to know your rights as an employee and what your options are if you are an employee who find yourself suddenly unemployed and struggling.

The Labour Relations Act (“LRA”) has a Code of Good Practice for Dismissals that employers must follow. The two-stage fairness test for dismissal to be fair, known as substantive fairness and procedural fairness.

Substantive 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 or incapacity.

Regarding procedural fairness, the employee must always have a fair hearing before being dismissed.

Unfair dismissal

An unfair dismissal according to our Labour 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 favourable 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 bigger discretion when it comes to compensation, however limits the maximum amount of compensation for an unfair dismissal at twelve months’ salary in the case of an unfair dismissals.

By Khalieda Osman