Fairness in Dismissals

Dismissals for “sleeping on the job”, “theft”, “insubordination” or even “gross misconduct” aren’t always legal. Here’s why.

Fairness

In terms of the Labour Relations Act, 66 of 1995, and the Code of Good Practice, dismissals must be both substantively and procedurally fair. If only one or none of these principles are followed, a dismissal may be found to be unfair.

Substantive Fairness

This is usually the easier of the principles to distinguish. Substantive fairness relates to the misconduct of the employee which resulted in a dismissal. Hence, did the conduct of the employee justify dismissal? In cases of theft or gross misconduct, substantive fairness can usually easily be established.

Procedural Fairness

Procedural fairness relates to the procedure followed by an employer in dismissing and employee for any alleged misconduct. The procedural aspect can be quite intricate and as a result will not be discussed here. An employer is obligated to follow the correct procedure in dismissing an employee regardless of the cause for the dismissal. Procedural fairness is the most frequent reason for which dismissals are found to be unfair.

Automatic Unfairness

The following reasons for dismissal will be automatically unfair in South African Labour Law:

  • Exercising any of the rights given by the LRA or participating in proceedings in terms of the Act;
  • Taking part in lawful union activities;
  • Taking part in a legal strike or other industrial action or protest action;
  • Refusing to do the work of someone who was on strike;
  • Being pregnant, or any reason related to pregnancy;
  • Refusing to accept a change in working conditions;
  • Reasons that are due to arbitrary discrimination (except that an employer may retire someone who has reached the normal or agreed retirement age, or if the reason is based on an inherent requirement of the job, for example being able to speak a certain language in order to do the job properly);
  • A reason related to a transfer following a merger of the company with another organization
  • Where the employee is dismissed following a disclosure made by him in terms of the “Disclosure of Information Act”.

If you are concerned about a labour matter as either an employee or employer, feel free to contact us for advice regarding a dismissal or work related misconduct.