Every employee in South Africa has the right to fair labour practices, an environment where a person can work and feel protected within the course and scope of their employment.
Dismissal in a place of employment is governed by inter alia the labour relations Act (LRA) Act 66 of 1955, and aims to promote economic development, labour peace and democracy in the workplace.
It is of paramount importance that an employee reads his or her employment contract together with the Labour Relations Act (‘LRA’) to ensure that no rules or conducts are misunderstood, and as a result, overlooked – it is also imperative that employers ensure that their agreements comply with the law.
Moreover, the LRA provides employees with the right not to be unfairly dismissed or subjected to unfair labour practices.
The only employees specifically excluded from the scope of the LRA are individuals employed in terms of the National defence force Act 42 of 2002 and the intelligence services Act 65 of 2002.
Judges and Magistrates are also excluded from the scope of the LRA.
One of the largest questions, faced by our Labour Court and CCMA (Commission for Conciliation Mediation and Arbitration), on a daily basis, is what constitutes unfair dismissal:
(Employers should take note hereof, to prevent unnecessary CCMA matters arising)
DISMISSAL MAY BE DEFINED AS FOLLOWS:
An employer has terminated employment contract with or without notice;
- An employee in terms of a fixed term contract of employment reasonably expected employer to –
- to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
- to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not retain the employee;
- an employer refused to allow an employee to resume work after–
- Maternity leave in terms of any law, collective agreement or contract of employment; or
- An employer who dismissed a number of employees for the same or similar reasons offered to re-employ one or more of them but has refused to employ another; or
- Employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; or
If an employee is dismissed, it is important to note that the reasons and the procedure that preceded the dismissal should be fair.
In other words, was the dismissal fair and were the correct procedural steps taken in seeking the dismissal.
In assessing the aforesaid, the following should be noted:
A fair reason for dismissing an employee consists of the relevant circumstances.
The employer must have a proper and fair reason for dismissing the employee, such as:
- Misconduct in the workplace;
- Incapacity or inability to work;
- Retrenchment;
(substantive fairness)
When an employer dismisses an employee, the correct procedural steps should also be followed:
The employee should be notified of the intention for the dismissal, and should have the opportunity to present evidence in mitigation thereof and/or provide his/her version.
Each dismissal is viewed in its own light.
Further, the aforesaid is not exhaustive whatsoever, and does not canvass summary dismissal.
Every decision in terms of dismissal should be taken following a strict internal procedure.
For assistance in assessing a dismissal or possible dismissal, feel free to contact our office.
Written by Musa Mativandlela (Candidate Attorney), as assisted by KR Elliott (Director)