Page 4 - KZN Business Sense-11.5 - Lesedi Metsoamere-ABSA - eBook

UNFAIR DISMISSAL IN SOUTH AFRICA:

LEGAL PROCESSES AND PRACTICAL TIPS

Johan van Deventer, offering re-employment to ■ Procedurally Unfair ■ Document every step Step 7 – Prepare for Potential
KZN Regional others. Dismissals: Even if there is a contemporaneously to establish CCMA Referral
Manager, Labournet ■ Failure to allow an employee valid reason, failing to follow a a legal defence if challenged. Employees have 30 calendar
to resume work after maternity fair process (e.g., not giving Step 3 – Schedule a Disciplinary days from the date of dismissal
nfair leave. notice or a chance to respond) Hearing (or from receiving the internal
dismissal makes the dismissal unfair. appeal outcome) to refer an
Ucontinues When Is a Dismissal Unfair? ■ Substantively Unfair ■ Issue a written notice detailing unfair dismissal dispute to the
to be one of the (Section 188 of the LRA) Dismissals: If the reason for the allegations and informing Commission for Conciliation,
most prevalent According to section 188, a dismissal is not fair or valid the employee of their rights. Mediation and Arbitration
and costly dismissal is unfair unless the (e.g., dismissing for minor ■ Allow reasonable time for (CCMA) or the relevant
challenges employer can prove: infractions or without preparation and for arranging bargaining council. If referred
facing South ■ Substantive Fairness: That evidence), the dismissal is representation. Employees are late, the employee must apply for
African there was a valid and fair unfair. entitled to be assisted by a fellow condonation. Employers should
employers reason for the dismissal, employee or shop steward. still maintain all records.
under labour law. While South related to misconduct, Common Mistakes Employers ■ External legal representation
African labour law has always incapacity (including poor Make in internal hearings is not an Maintain complete
required both a valid reason and performance, ill health, or Common errors made by automatic right; it is permitted documentation, including charge
a fair procedure for dismissals, incompatibility), or operational employers include omitting only if company policy, a sheets, investigation notes, hearing
the 2025 Code of Good Practice: requirements (retrenchments/ warnings or counselling for collective agreement, or fairness minutes, warning letters, and
written outcomes. Procedural
Dismissal refines and clarifies these restructuring). poor performance except in requires it. compliance and meticulous
requirements. It introduces a more ■ Procedural Fairness: That a cases of serious misconduct, ■ Ensure even informal
flexible, context-sensitive approach, fair process was followed, giving failing to provide clear and disciplinary processes provide record-keeping remain the
while still holding employers the employee the opportunity timely notification to employees, notice and an opportunity to strongest defence in any dispute.
to the principle that dismissal to respond to allegations, be applying disciplinary measures respond. Securing Expert Representation
must be both substantively and heard at a hearing, and be inconsistently among staff, and
procedurally fair. treated consistently. neglecting to maintain accurate Step 4 – Hold the Disciplinary Specialist services, such as those
and comprehensive records. Hearing offered by Labournet, significantly
Why Unfair Dismissal Automatically Unfair Dismissals reduce employer risk at the
Appoint a neutral chairperson;
Compliance Is Critical (Section 187 of the LRA) Step-by-Step Process for ■ for complex or serious cases, CCMA and Labour Court. Expert
Every dismissal, whether based Certain dismissals are Employers consider an independent representation can be decisive in
achieving a defensible outcome
on misconduct, incapacity, or automatically deemed unfair, This step-by-step guide explains external chairperson. and avoiding costly awards.
operational requirements, must regardless of process, if they are how to conduct lawful dismissals ■ Provide the employee the
satisfy both substantive and based on prohibited reasons. under the LRA and the 2025 opportunity to present Fair Dismissal as a Strategic
procedural fairness. The updated Examples include: Code of Good Practice: Dismissal. their case, call witnesses, and Business Advantage
Code underscores the principles ■ Dismissal for discriminatory Following this structured challenge evidence through
of flexibility, proportionality, reasons such as race, gender, approach ensures compliance with cross-examination. While dismissals are
and meaningful engagement, pregnancy, or religion. South African labour law and sometimes unavoidable, when
particularly for smaller minimises the risk of unsuccessful ■ Keep a full record – minutes or conducted correctly they serve
enterprises, while maintaining the ■ Dismissal for union dismissal disputes. transcript – and issue a a strategic function beyond
legal compliance. Lawful
foundational standards of fairness membership, participation in reasoned decision that shows dismissals safeguard your
throughout the dismissal process. union activities, or protected Step 1 – Identify Grounds for how the evidence was assessed.
strike action. Dismissal organisation’s legal position,
What Counts as an Unfair ■ Dismissal for asserting a Step 5 – Make a Decision and uphold employee morale,
Impose Sanction
South African labour law
Dismissal in South Africa? statutory right under the LRA. recognises three primary grounds reinforce a culture of fairness,
Under South African labour Practical Implication for for dismissal: ■ Evaluate the evidence and and protect the company’s
reputation. Conversely,
law, not every termination of Employers ■ Misconduct: e.g. theft, hearing outcomes objectively to procedural errors, inconsistent
employment is unlawful – but insubordination, or breach of determine culpability. application, or inadequate
if it is not supported by a valid Employers must ensure that every policy. ■ Consider mitigating and documentation can expose the
reason and a fair process, it will be dismissal satisfies both substantive aggravating factors, including business to costly CCMA claims
considered an unfair dismissal. and procedural fairness. The 2025 ■ Incapacity: covers poor length of service and past and reputational risks.
Code of Good Practice: Dismissal performance, ill-health, or disciplinary record.
Legal Definition of Dismissal refines this requirement by incompatibility with the ■ Apply the principle of How Labournet Can Support You
(Section 186 of the Labour emphasising: role. The 2025 Code explicitly proportionality: dismissal
Labournet understands that
Relations Act) ■ Flexibility – procedures may recognises incompatibility should be a last resort and is managing dismissals within the
Section 186(1) of the Labour vary depending on the size and (where an employee cannot justified only if the employment framework of South African
Relations Act (LRA) 66 of 1995 (as resources of the employer. fit into the role or team) as an relationship has become labour law can be complex and
amended) sets out what constitutes ■ Proportionality – dismissal incapacity matter. intolerable or no lesser sanction fraught with risk. That is why our
a dismissal. It includes: should be a last resort, with ■ Operational Requirements: is appropriate. support extends far beyond basic
■ Termination of employment lesser sanctions considered first. retrenchments based on ■ In incapacity cases, demonstrate advice. We offer a comprehensive,
by the employer, with or ■ Meaningful Engagement economic, technological, that reasonable support or hands-on partnership to help
without notice. – even smaller employers must structural, or similar business accommodation was attempted you navigate every stage of the
■ Failure to renew a fixed-term give employees a real needs. before dismissal. dismissal process with confidence
contract where the employee opportunity to state their case. It is essential to align the Step 6 – Provide Written Notice and legal certainty. 
had a reasonable expectation dismissal reason with the LRA, of the Outcome
of renewal on the same or Failure to comply exposes ensuring it is fair, justifiable, and T: +27 (0)31 266 6570
Deliver a written notification to
similar terms. employers to CCMA disputes, substantiated. the employee setting out: C: +27 (0)82 786 7480
reinstatement orders, or
E: johanvd@labournet.com
■ Renewal on less favourable compensation awards W: www.labournet.com
terms despite a reasonable Step 2 – Conduct a Preliminary ■ The decision (dismissal or
expectation of renewal on the Automatically Unfair vs Investigation alternative sanction)
same terms. Procedurally/Substantively ■ Collect relevant evidence such ■ The reasons for the decision
■ Constructive dismissal – where Unfair Dismissals as documents, emails, CCTV, ■ The right to appeal, including
an employee resigns because ■ Automatically Unfair and witness statements. applicable timelines
the employer made continued Dismissals: These include ■ Assess the context and ■ Retain a copy of this SCAN
employment intolerable. dismissals for reasons such as seriousness of the issue communication for company QR CODE
■ Selective re-employment – union membership, pregnancy, impartially. records
where an employer refuses to or exercising legal rights. These ■ Determine whether there is a ■ The Code requires reasoned TO SEE
re-employ a former employee, are strictly prohibited and prima facie case before written outcomes as evidence of VIDEO
without a fair reason, while attract severe penalties. proceeding to a hearing. procedural fairness

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