UNFAIR DISMISSALS IN SOUTH AFRICA

UNDERSTANDING WHAT AN UNFAIR DISMISSAL IS

In South Africa, employment relationships are protected by various labour laws that aim to uphold fairness and protect workers from unjust practices. One key protection in the workplace is against unfair dismissal. This legal safeguard is crucial, ensuring that employees are not dismissed from their jobs without cause or due process.

An unfair dismissal occurs when an employer ends an employee’s contract in an unjust manner or does not follow the correct procedural steps outlined by law. 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, or 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.
Conversely, a dismissal will not be considered unfair if the employer’s reasons for dismissal are related to the employer’s operational requirements. This distinction is important for employees and employers to understand, providing clarity on when a dismissal is considered fair under the law.
Where the reasons for an employee’s dismissal are fair but the procedure was incorrectly followed, the employee can still prove unfair dismissal.

• Retrenchment Without Following Proper Procedure: While retrenchments may be necessary for economic reasons, failing to follow the legally required procedure for consulting with employees and unions can result in an unfair dismissal claim.

WHAT IS THE CORRECT LEGAL PROCEDURE FOR A FAIR DISMISSAL?

1. 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.
2. 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;
3. 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.
4. The Notice must also inform the employee of their right to be assisted by either a Trade Union or a fellow employee
5. 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.
6. 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.

CONSULT WITH EXPERIENCED LABOUR LAWYERS WHEN DEALING WITH AN UNFAIR DISMISSAL

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.We understand the complexities of South African labur law and are dedicated to protecting employee rights and ensuring fair treatment. Whether you need representation at the CCMA or want to explore your options for reinstatement or compensation, our team will stand by you. Contact and schedule a consultation with our labour lawyers at Burger Huyser Attorneys for professional and expert guidance in all unfair dismissal matters and procedures.