South Africa has extensive labour laws protecting the employee from unfair labour practices, including unfair dismissals. However, there is a general misunderstanding of what an “unfair dismissal” is, how to prove it and what can be done about it.
What is an unfair dismissal?
In cases where an employee claims that they were unfairly dismissed the employee has to prove that there was in fact a dismissal. The normal definition of a dismissal as the “termination of a contract of employment” does not capture the full concept of a dismissal in terms of South African legislation. In terms of the Section 186(1) of the Labour Relations Act, a dismissal includes:
- When an employer terminates a contract of employment with or without notice;
- The failure of an employer to renew a fixed term contract where there was a reasonable expectation on behalf of the employee that the contract would be renewed;
- When an employer offered to renew the fixed term contract on less favourable terms;
- If an employer refused to allow an employee to return to work after she took maternity leave in terms of any contract, law or collective agreement;
- If an employer dismissed a number of employees for the same or similar reasons and has offered to re-employ a few of them but not all;
- Constructive dismissals, which occur when the employee terminates their contract of employment as the employer has made continued employment unbearable;
- When an employee terminates their contract of employment because the new employer, after the business was transferred, provided less favourable working conditions than those provided by the previous employer.
As can be seen from the above, the concept of a dismissal in terms of legislation encompasses a multitude of different scenarios in which a contract of employment is terminated. Nevertheless, not all dismissals are unfair dismissals. The onus to prove that a dismissal is fair falls upon the employer.
A dismissal is fair if the reason for the dismissal is related to the employee’s misconduct or incapacity, or was due to the employers operational requirements and the dismissal was effected in accordance with fair procedure. If this cannot be proven, then the dismissal will be deemed unfair.
What are the remedies for an employee that is unfairly dismissed?
The Labour Relations Act provides three possible remedies that may be awarded for an unfair dismissal. These are:
- Reinstatement of the employee from as early as the date of dismissal, not earlier;
- Re-employment of the employee in either the same position or other reasonably suitable position from as early as the date of dismissal, again not earlier;
- Compensation of the employee.
Labour Relations Act 66 of 1995;
Van Niekerk, A. (ed.) (2012) Law@work. Johannesburg: LexisNexis