With unemployment being at its highest in South African, currently sitting at 29% (6,7 million unemployed South Africans) according to Stats SA, it’s no wonder the topic is on every South African’s mind today. It is therefore a crucial time for each and every employed South African to know and understand their rights regarding the legal principles that regulate an employee’s dismissal.

Firstly, we need to understand that the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA), as amended, regulates all aspects relating to the dismissal of Employees. The Act creates 3 grounds for a fair dismissal proceeding:

1. The conduct of the Employee
2. The capacity of the Employee
3. The operational requirements of the Employer’s business.

But let’s take a look at how best to describe unfair dismissal. Essentially, unfair dismissal can be described as the termination of a contract of employment for unfair or inadmissible reasons. The LRA (Labour Relations Act) prescribes that an employee’s dismissal must be procedurally fair as well as substantively fair. That is, the dismissal must be handled according to the correct procedure as well as in accordance with fair & lawful reason.

Section 185 of the Labour Relations Act, 66 of 1995, as amended, provides that every employee has the right not to be:

1. unfairly dismissed, and
2. subjected to unfair labour practice.

Now the LRA has been around for quite some time, and you would think that most employers have a clear understanding of what constitutes fair/unfair dismissal, right? So why does this still occur in the workplace?

In my experience I have found that a lot of employers are either completely unaware of the necessity to comply with the prescribed process (procedural fairness), or they think it is optional based on the severity of the misconduct or optional based on how they personally prefer to run their business.

For example: Theft in the workplace. Many employers feel they are justified in bypassing the procedure & out of anger go into on-the-spot “fire” mode. Some employers are of the mindset “we have always done it this way” or “It’s my business & I will run it as I feel fit”. Other employers feel frustrated by the procedural process of progressive discipline & that it takes too long & therefore cut corners to speed the process up. When the above is practised by the business owner it always ends up being to their detriment. Compliance with legislation (LRA) is not a suggested or a negotiable matter, therefore when employers choose to operate outside of it, regardless of the reason, it will end up costing them in the long term.
Employers do not consider that the CCMA can recommend reinstatement as well as back-pay for an employee who has been unfairly dismissed. This has a number of ripple effects from a decrease in overall employee morale & productivity, tainted brand/reputation, disruption in the workplace, etc.

So as you can see, the law is very clear about the legal principles that need to be applied when it comes to dismissals in the workplace. In my next article, The complexities around Unfair Dismissal, we’ll dive a little deeper into a few more complex situations around unfair dismissal, what to look out for in terms of some grey areas, as well as steps to follow in dealing with disciplinary processes and measures to put in place to prevent being found guilty of unfair labour practices.

Now, if you found this article helpful, or feel that you need professional assistance in setting up the correct processes and procedures, or if you need immediate assistance with a dismissal case, simply contact Alignment Consulting today and we’ll help solve your staff related- issues.