In accordance with the Labour Relations Act 66 of 1995, a dismissal is considered unfair if it violates an employee’s basic employment rights. Employers are prohibited from dismissing an employee for exercising their legal employment rights such as:
-Partaking in a lawful strike or protest.
-Exercising freedom of association.
-Enjoying their rights granted by labour laws.
On the contrary to unfair dismissals, the Labour Relations Act authorises an employer to terminate an employee’s contract on the following grounds:
1. Operational requirements: retrenchment due to economic or business needs, such as a decline in sales or financial constraints.
2. Misconduct: breach of workplace rules or policies, including but not limited to theft, insubordination, or unauthorised absenteeism.
3. Incapacity: failure to meet performance standards or inability to perform duties due to illness or health issues.
These grounds provide a framework for lawful termination.
TYPES OF DISMISSALS
Automatic unfair dismissal: This means that the dismissal of an employee is always deemed unfair and cannot be justified by the employer, these include:
-Dismissing an employee for exercising their rights under the Labour Relations Act.
-Dismissing an employee for partaking in a lawful protest or strike.
-Dismissing an employee due to pregnancy or related reasons.
Constructive dismissal: This transpires when an employee resigns due to unendurable conduct by the employer, which in effect forces the employee to leave their place of employment. In such cases, the employee may claim that their resignation was not voluntary, but rather the result of the employer’s actions.
Unprocedural retrenchment: Although retrenchments are of necessity due to economic or operational requirements, employers must follow the procedure prescribed by law to ensure fairness. Failure to comply with the required procedures can render the retrenchment an unfair dismissal, potentially entitling the affected employee to compensation or other remedies.
SUBSTANTIVE FAIRNESS IN A DISMISSAL
Substantive fairness refers to the requirement that an employer must have a just, fair, and equitable basis for terminating an employee’s contract. To determine substantive fairness, the following factors must be considered:
-Appropriateness of dismissal: Is dismissal the appropriate penalty, or would a less severe measure, such as a verbal or written warning, be more suitable?
-Evidential proof of misconduct: Does the employer have sufficient evidence to support the allegations of misconduct?
According to Section 188(1) of the Labour Relations Act, a dismissal is considered unfair if the employer fails to prove that the reason for the dismissal is fair and related to the employee’s conduct, capacity, or the employer’s operational requirements.
PROCEDURAL FAIRNESS IN A DISMISSAL
A fair dismissal requires both a valid reason and a fair process. Even if the dismissal is unfair, following the proper procedures can justify the employer’s actions.
-Investigation: An employer should conduct a thorough investigation to determine whether there is evidence in to substantiate their reason for dismissal.
-Notification of Charges: An employer should formulate clear and specific charges related to their reason for dismissal, ensuring the employee has sufficient information to prepare for the disciplinary hearing.
-Notice of Disciplinary Hearing: An employer should provide the employee with reasonable notice (typically 48 hours) of the disciplinary hearing, which may be given orally or in writing.
-Opportunity to Respond: Allow the employee to respond to the allegations and present evidence during the disciplinary hearing.
-Representation: Grant the employee the right to representation by a trade union representative (with organisational rights) or a colleague.
-Mitigation and Aggravation: Provide the employee with an opportunity to present evidence in mitigation and consider both mitigating and aggravating circumstances when deciding on the dismissal.
-Decision: Communicate the chairperson’s decision to the employee, preferably in writing.