What is regarded as an Unfair Dismissal?
An unfair dismissal is whereby an employer terminates employment without good cause and/or without following the correct procedure. This means the fairness of a dismissal hinges on two legs, substance and procedure. The Labour Relations Act 66 of 1995 provides that a dismissal will be regarded, by default, as unfair if the reason for the dismissal amounts to an infringement of the employee’s fundamental rights e.g gender, race, ethnicity, if unjustifiable under the circumstances.
An employer is not allowed to dismiss an employee for exercising their statutory employment rights. These rights include supporting or participating in a lawful strike or protesting action, exercising freedom of association (trade unionism) or any other rights accorded by applicable Labour Laws.
On the other hand, dismissal will not be regarded as unfair if the employer’s reasons for dismissal related to the employer’s operational requirements.
Where the reasons for the dismissal of an employee are fair but the procedure was incorrectly done, the employee can still prove unfair dismissal.
The correct procedure for a fair dismissal to take place may be summarized as follows:
- An investigation to determine whether there are grounds for dismissal should be conducted. Here, the employer should notify the employee of the allegations against them, and the employee should be allowed to respond to the allegations.
- The employer may then decide to accept the response of the employee and close the file, or bring the allegations through a formal disciplinary hearing process;
- The employer must be given a formal Notice set out with the allegations against them, and informing them of their rights to such things as representation, language interpretation, postponement, adducing and challenging evidence etc.
- The Notice must also inform the employee of their right to be assisted by either a Trade Union or a fellow employee
- The hearing must then be held at the appointed date and time, where after a verdict and its attendant reasons must be issued to the employee.
- If the employee is dismissed, reasons for dismissal should be given to the employee, and he or she should be reminded of any rights to refer the matter on appeal to the necessary authorities.
If you are of the opinion that you have been unfairly dismissed, our Labour law team at Burger Huyser Attorneys will assist you with your matter and ensure that the necessary procedures of redress are taken.