Every employee in South Africa has the right to fair labour practices, an environment where a person can work and feel safe within the course and scope of their employment.
Dismissal in the workplace is governed by the Labour Relations Act (LRA) Act 66 of 1955 and aims to promote economic development, social justice, labour peace and democracy in the work place. It should also be noted that there rests a responsibility on an employee to read his/her employment contract together with the LRA to ensure no rules or conducts are misunderstood and consequently over stepped.
The Labour Relations Act is applicable to every employee, employer, trade unions and employer’s organization except for members of the National Defence Force, members of the National Intelligence Agency and members the South African Secret Service.
The question arises then when is a dismissal fair and when does a dismissal constitute to unfairness.
The LRA has a Code of Good Practice for Dismissals that employers must follow.
This Act recognizes three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business.
If an employee is dismissed it is important to note that the reasons and the procedure that followed to the dismissal has to be fair. In other words was the dismissal fair and was the correct procedural steps taken for the dismissal.
- Fairness of the dismissal.
Fairness of the dismissal entails if the dismissal was fair or put in another way was the dismissal fair in the particular circumstances.
The employer must have a proper and fair reason for dismissing the worker.
A fair reason for dismissal can consist of the following:
- Misconduct in the work place;
- incapacity or inability to work;
- retrenchment.
2. Procedural fairness
When an employer dismiss an employee the correct procedural steps have to be taken.
The employee must be notified of the decision to be dismissed and have a fair oppurtunity to be heard before the dismissal to state his or her case. An employee also has the right to be represendted at such a hearing.
Dismissal for Misconduct
A person can also be dismissed for misconduct in the workplace.
Employers and work organizations should have clear rules that are regulated in the workplace. Either stipulated in the employers contract or in the organizations Rules.
Rules in the workplace can also be of such a nature that it is common to everyone, for ecample not to steal, etc.
Any person who is determining whether a dismissal for misconduct is unfair should consider:
a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) if a rule or standard was contravened, whether or not-
- the rule was a valid or reasonable rule or standard;
- the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
- the rule or standard has been consistently applied by the employer; and
- dismissal was an appropriate sanction for the contravention of the rule or standard.
Unfair dismissal consists of the following:
- an employer has terminated a contract of employment with or without notice;
- an employee reasonably expected the employer to renew a fixed termcontract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
- an employer refused to allow an employee to resume work after she-
- took maternity leave in terms of any law, collective agreement or her contract of employment; or
- was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;
- an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
- an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
- an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.[1]
It is therefore important for every employee to know the rules regulated in the work place as well as the rules entailed in the Labour Relations Act to determine whether or not a dismissal has been fair or not.
Written by : Christian M. Schietekat (B.Com Law; LL.B)
[1] http://www.labour.gov.za/DOL/legislation/acts/labour-relations/labour-relations-act/