What is Unfair Dismissal in South Africa?
Unfair Dismissal
What is Unfair Dismissal in South Africa?
The fairness of a dismissal is decided in two ways – substantive fairness and procedural fairness.
Substantive Fairness
Substantive fairness is decided by whether or not there was a fair reason to dismiss the employee and was it appropriate under the circumstances to dismiss the employee.
There are three reasons by which you can fairly dismiss an employee:
- Misconduct (The employee has done something wrong)
- Incapacity (The employee does not do the job properly, or is unable to due to ill health or disability)
- Retrenchment or redundancy (The employer is cutting down on staff or restructuring the work done)
Procedural Fairness
Did the employer handle the dimissal procedure fairly?
The employee must always have a fair hearing before being dismissed, where they are able to give their side of the story. You cannot fairly dismiss someone without a disciplinary hearing.
Even if the employee is at fault, the employer still needs to pay the right wages, leave pay and notice pay.
It is completely within the employees rights to refer the dismissal to the CCMA for conciliation.
See below for more about fair procedures for each of the kinds of dismissal:
Misconduct
It is best for employers if they have clear rules of conduct for employees to follow. A dismissal for misconduct can only really be seen to be fair if the following is true:
- The worker broke a rule at the workplace.
- The rule was reasonable and necessary.
- The worker should have known about the rule.
- There is a consistent application of the rule. The employer does not selectively apply the rule.
- Dismissal is an appropriate action, as opposed to disciplinary action or a lesser penalty.
Employees should not be dismissed for minor infractions. Corrective discipline should be the first resort, to bring the employee into line. Repeated breaking of the rules can incur greater and greater penalties.
For first offences, only serious offences should result in dismissal. Examples could be physical assault, intentional damage to the employers property, gross insubordination, or putting others safety at risk.
Employees can be dismissed for engaging in a strike without following the proper procedure. A trade union official would need to be informed, with an ultimatum with enough time for the ultimatum to be properly considered. The employees should not be dismissed if they return to work before the ultimatum is reached.
Employers need to keep disciplinary records for each employee showing any offences comitted by the employee, what disciplinary action was taken, and why. Repeated misconduct must result in warnings, with the final warning for repeated or serious misconduct being a written warning.
In order for a hearing to be considered as fair:
- If the employee is a shopsteward, then the union will need to be notified about the hearing.
- The employee must be informed about which charges are being brought against them, and they must be given time to prepare for the hearing.
- The employee must be given an opportunity to be present at the hearing and present their case.
- The employee must be allowed to be represented by a union official or co-worker.
- The employee must be allowed to view documents, and cross-examine any evidence used against them.
- All witnesses to the misconduct should be present at the hearing, and the employee should be given an opportunity to cross-examine said witnesses.
- The employee should be allowed to call witnesses of their own.
- The employee should be given reasons for any actions taken against them.
Incapacity
Dismissals for incapacity can be for poor work performance, ill health, disability or incompatibility.
When deciding if a dimissal for incapacity was fair or not, the following needs to be considered:
- Did the employee fail to work to a given standard?
- Was the employee aware of the expected standard?
- Was the employee given a fair chance to meet the standard?
- Is dismissal a fair punishment?
A dismissal for poor performance can only be seen as fair if:
- The employee was given sufficient training, evaluation, guidance and advice
- Their performance was assessed over a suitable period of time
- The reasons for poor performance were suitably investigated
- Alternatives to dismissal had been explored
- The employee was given a chance to be heard before the dismissal
Dismissals for poor health or disibility can only be seen as fair if:
- The degree and duration of incapacity has been investigated
- Alternatives to dismissal have been explored
- An attempt has been made to find alternative work for the employee, or to adapt their work to make it possible for the employee to continue working.
- The employee has been given a chance to be heard.
All of the following also needs to be considered:
- How badly is the employee injured or disabled?
- How likely are they to remain ill or disabled?
- What is the reason for the incapacity?
More effort is expected from the employer if the employee was injured or became sick in the course of their duties.
Retrenchment or Redundancy
Employers are allowed to retrench workers for the following reasons:
- Economic – e.g. the employer is losing money.
- Technological – e.g. employees are being replaced by machinery, or need different skills to operate new machinery.
- Structural – e.g. the business is being restructured and two departments are being consolidated, so it is no longer necessary to have two seperate heads of department.
When considering retrenchment, the employer will need to consult whoever the collective agreement says it needs to consult, or failing that the workplace forum, or failing that the union or, if none exists, then the workers themselves.
A written notice needs to be given to the relevant persons, inviting them to consult, which should include the following:
- Reasons for the retrenchment
- Alternatives that have been considered (including redeployment)
- Number of employees to be retrenched
- How the decision will be made regarding who will be retrenched
- When dismissals shall take place
- How much severance will be paid
- What other aid can be given to those who will be retrenched
- Future re-employment prospects
- Number of people employed
- How many retrenchments have been made in the last 12 months
Those invited to consult need to be given a chance to speak and make suggestions on the retrenchment. If the employees have given their representations in writing, then the employer will need to make their replies in writing.
The consultation should aim to reach a consensus on the following:
- Whether retrenchment is justified and ways to avoid retrenchment
- How to reduce the number of people to be retrenched
- How to limit the harsh effects of retrenchment
- How to select those to be retrenched
- Negotiation on severance pay
If an agreement cannot be reached, then the matter can be referred to the CCMA.
Automatically Unfair Dismissal
According to Section 187 of the Labour Relations Act, dismissing someone for one of the following reasons is ‘automatically unfair’:
- Participating in a protected (legal) strike or intending to do so
- Refusing to do the work of a colleague who is participating in a protected strike (unless their refusal will endanger life or health)
- Not accepting an employers demand or coercion on a matter of mutual interest (ie. dismissing someone for not accepting your pay increase)
- For exercising their rights according to the LRA
- For participating in proceedings against the employer, or reporting the employer to a relevant authority
- Pregnancy or intended pregnancy
- Arbritary discrimination based on race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility
- The dismissal was related to the takeover of a going concern
- Taking part in lawful union activities
- Due to a disclosure in terms of the ‘Disclosure of Information Act’
Unfair Dismissal – How much Compensation
The exact amount of compensation will be up to the judge or arbitrator, but the Labour Relations Act recommends a maximum of 12 months salary for normal unfair dismissal or up to 24 months salary for an automatic unfair dismissal.
