Dismissals

What is a dismissal?

  • The termination of an employment agreement at the option of the employer who communicates this to the employee.
  • A dismissal differs to a resignation.
  • Every employee has the right not to be unfairly dismissed.
  • An unfair dismissal means:
    • the employer fails to prove that the dismissal was procedurally and substantially (relating to the reason for the dismissal) fair; and
    • the employee must be re-employed unless s/he prefers compensation of no more than 12 months' remuneration.
    • Examples of an unfair dismissal include a dismissal where an employee exercises his/her freedom of association to belong to a trade union, based on discrimination, or for whistleblowing.

Types of fair dismissals

There are 3 grounds of dismissal in South Africa.

  • Misconduct 
    • Examples of misconduct include: 
      • a conflict of interest (to engage with a business that conflicts with the employer's business);
      • gross dishonesty such as theft, fraud, or lying;
      • damage to the employer's property;
      • endangering the safety of other employees;
      • the use of drugs or alcohol on duty;
      • refusing to obey the employer's lawful instructions;
      • sexual-harassment;
      • racist language; and
      • participating in an unprotected strike.
    • The fair reason for the dismissal:  there was a lawful rule or standard of conduct that existed at work, it was consistently applied by the employer, the employee was aware of the rule or conduct, and it was contravened by the employee.
    • The fair procedure includes: the employer did an investigation into the misconduct, the employee was informed of the misconduct in a language s/he understood, the employee responded with assistance and sufficient time to prepare and defended the allegation, and on dismissal s/he was given reasons for the dismissal and was reminded of his/her rights in a dispute resolution procedure.
    • Incapacity (where an employee was incapable of doing the work for which s/he was employed)
  • Poor Work Performance 
    • The fair reason for the dismissal: the employee was aware of performance standards, and failed to achieve these standards despite being given an opportunity to meet to them.
    • The fair procedure includes: that the employee was given an opportunity to improve his/her poor work performance.
    • There can be no dismissal if the employee was transferred to a less physically, intellectually or emotionally demanding position.
  • Ill-health or Injury 
    • The fair reason for the dismissal: the employee was unable to perform the work due to ill-health or injury and the absence from work was unreasonably long.
    • The fair procedure includes: that the employer investigated the disability, the employee's work circumstances could not be adapted to accommodate the disability, there was no other suitable work available, and a pre-termination hearing was given to the employee to defend his/her case.
  • Operational Requirements (retrenchment or redundancy) 
    • Dismissals for operational requirements are called "no fault" dismissals.
    • The fair reason for the dismissal: will depend on the facts of each case. For example: due to a drop in demand for the company's services or products, the introduction of new technology, financial management, or reorganisation of the employer.
    • The fair procedure includes: a written notice inviting employees to a consultation with a facilitator such as a representative from a trade union, negotiation on measures to avoid a dismissal, a written disclosure of all relevant information, allowing employees an opportunity to make a representation, a selection criteria to decide who gets dismissed, and severance pay.

Key.

  • RESIGNATION: a notice period is given by the employee to his/her employer:
    • one week's notice if the employee is employed for 6 months or less;
    • two weeks' notice if the employee is employed between 6 months to 12 months; and
    • four weeks' notice if the employee is employed for 12 months or more.
  • COMPENSATION: a payment of money to reduce the employee's loss.
  • REMUNERATION: payment such as a salary, medical aid or transport etc.
  • "NO FAULT" DISMISSALS: it is not the employee who is responsible for the termination of the employment. One or more employees may be selected from a group of employees for dismissal based on fair criteria such as length of service, skills and qualifications, or the LIFO principle (last in, first out).
  • SEVERANCE PAY: payment of money for dismissal on operational requirements.

How can Legal Eagle assist you? 

We can, subject to our terms and conditions:

  • Refer dismissals for misconduct and incapacity to a Bargaining Council or the CCMA.
  • Refer dismissals for operational requirements to an attorney for representation in the Court.