Losing a job is a stressful experience, but it can be even more frustrating if the dismissal is unfair. In South Africa, labour laws protect employees from unfair treatment, ensuring that dismissals are carried out legally and fairly. The Labour Relations Act (LRA) outlines the legal requirements for dismissals and provides remedies for workers who have been unfairly dismissed.
In this blog, we will explore what constitutes an unfair dismissal, the legal framework governing dismissals, the steps employees can take if they believe they were unfairly dismissed, and what to expect when taking a case to the Commission for Conciliation, Mediation and Arbitration (CCMA).
What is an Unfair Dismissal?
An unfair dismissal occurs when an employer terminates an employee’s contract in a way that is procedurally and/or substantively unfair. In other words:
- Procedural fairness refers to whether the correct disciplinary and dismissal procedures were followed.
- Substantive fairness relates to whether there was a valid reason for the dismissal.
If an employer fails to meet these criteria, the dismissal may be challenged under South African labour law.
South African Law on Unfair Dismissal
The Labour Relations Act (LRA) is the primary legislation governing unfair dismissals. According to Section 185 of the LRA, every employee has the right not to be unfairly dismissed or subjected to unfair labour practices.
To be fair, a dismissal must meet the following requirements:
1. The dismissal must be for a valid reason (substantive fairness)
- The employee must have committed misconduct
- The employee’s performance must have been inadequate (after due warning and training) or the employee is objectively incapable of performing the job for which they were employed.
- The employer must be retrenching due to operational needs.
2. The dismissal must follow the correct procedure (procedural fairness)
- The employer must conduct a proper disciplinary hearing on reasonable notice.
- The employee must be given an opportunity to state their case.
- A decision must be based on fair and justifiable reasons.
Failure to meet these criteria could make the dismissal unfair and open to challenge at the CCMA or Labour Court.
Types of Unfair Dismissal
1. Dismissal Without a Valid Reason
If an employer fires an employee without providing a justifiable reason, the dismissal may be considered unfair. Examples include:
- Dismissing an employee due to personal differences.
- Retrenching an employee when the company as a guise to dismissal.
- Dismissing an employee without proving misconduct or incompetence.
2. Dismissal Without Following Proper Procedure
Even if there is a valid reason for dismissal, the employer must follow a fair disciplinary procedure. A dismissal may be unfair if:
- The employer did not give prior warning (except in cases of serious misconduct).
- The employee was not allowed to defend themselves at a disciplinary hearing.
- The employer ignored internal grievance or appeal procedures.
3. Automatically Unfair Dismissals
The LRA provides special protection against certain “automatically unfair” dismissals. These include:
- Dismissing an employee for being pregnant or taking maternity leave.
- Dismissing an employee for exercising their rights, such as joining a trade union or taking part in a legal strike.
- Dismissing an employee due to discrimination (race, gender, religion, disability, etc.).
- Retaliating against an employee for whistleblowing (reporting corruption or illegal activities).
Legal Steps Workers Can Take
If an employee believes they have been unfairly dismissed, they can take the following legal steps:
Step 1: Internal Appeal or Grievance Procedure
Before taking formal legal action, employees should first appeal the dismissal within their company. Many companies have internal grievance procedures to resolve disputes.
Step 2: Approach the CCMA (Commission for Conciliation, Mediation and Arbitration)
If internal processes do not resolve the issue, the employee can refer the case to the CCMA within 30 days of dismissal.
The CCMA Process:
- Conciliation: The CCMA will attempt to settle the dispute between the employer and employee through mediation.
- Arbitration: If conciliation fails, the case proceeds to arbitration, where a CCMA commissioner will make a legally binding decision.
If the CCMA rules in favor of the employee, they may order:
- Reinstatement: The employee returns to work with back pay.
- Compensation: The employer pays the employee for unfair dismissal.
Step 3: Labour Court Appeal
If the CCMA’s ruling is flawed, in certain limited instances, they may escalate the case to the Labour Court for further review.
Remedies for Unfair Dismissal
If a dismissal is found to be unfair, the following remedies may be available:
- Reinstatement – The employer may be ordered to reinstate the employee as if the dismissal never happened.
- Re-employment – The employee may be given a similar job at the company.
- Compensation – The employee may be awarded financial compensation (up to 12 months’ salary for normal unfair dismissals and 24 months’ salary for automatically unfair dismissals).
Avoiding Unfair Dismissal
For employers, preventing unfair dismissal claims involves:
- Ensuring there is a valid reason for termination.
- Following the correct disciplinary procedures.
- Documenting all warnings, hearings, and decisions.
For employees, understanding their rights under the Labour Relations Act can help them challenge unfair dismissals and take legal action when necessary.
Conclusion
Unfair dismissal is a serious issue that affects workers across South Africa. The Labour Relations Act provides strong protections for employees, ensuring that they are dismissed only for valid reasons and through proper procedures. If you believe you have been unfairly dismissed, you have legal options, including taking your case to the CCMA.
Understanding your rights and the legal framework governing unfair dismissals can help you take the necessary steps to seek justice and fair compensation. At Goldman Schultz, our experienced labour law attorneys can help you challenge unfair dismissals and protect your workplace rights. Contact us today or visit Goldman Schultz for expert legal support.
FAQs
What makes a dismissal unfair?
A dismissal is considered unfair if:
- There is no valid reason for termination.
- The employer did not follow the correct procedures.
- The dismissal was based on discrimination or retaliation.
What qualifies as unfair dismissal in South Africa?
A dismissal qualifies as unfair if the employer:
- Did not conduct a fair hearing.
- Fired the employee without substantive fairness.
- Discriminated against the employee based on race, gender, or other protected characteristics.
How does CCMA deal with unfair dismissal?
The CCMA handles unfair dismissal cases through:
- Conciliation: Attempting to resolve the dispute through mediation.
- Arbitration: If no agreement is reached, a CCMA commissioner makes a final, legally binding decision.
What is the meaning of unfair dismissal?
Unfair dismissal refers to a termination of employment that is unjustified, procedurally flawed, or discriminatory, violating the Labour Relations Act.