Understanding Workplace Dismissals in South Africa

Workplace dismissals in South Africa
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Getting dismissed is often referred to as “getting fired!” And although the world of Hollywood would have you believe that firing a worker is as simple as yelling the words “YOUR FIRED!” from your corner office. The reality in South Africa is actually quite different.

In fact, dismissing a staff member in South Africa can be quite difficult. South African employees’ are fortunate enough to be protected by the Labour Relations Act, which some say actually gives workers too many rights. Basically, the act states that in order for an employer to dismiss a staff member the dismissal must be substantively and procedurally correct. Not sure what that means? Not to worry we are going to discuss workplace dismissals in detail in this article.

Workplace dismissals

What is a dismissal?

Quite simply a dismissal is when an employer terminates an employment relationship.

An employment relationship begins when a person offers their services at the use and control of another person in exchange for compensation. Compensation would usually be monetary. The terms and conditions of that employment relationship should be contained in a written contract of employment. However, even if a written contract does not exist there will still be an implied contract between the two parties.

As mentioned earlier, a dismissal is when a contract of employment is terminated by the employer. In other words, against the will of the employee. This should not be confused with constructive dismissal which is when an employee would terminate the contract.

The Labour relations act protects all employees in South Africa against unfair dismissal, and basically states that an employer cannot simply fire a staff member without good reason or without following the proper procedure.

So for a dismissal to be fair, it must be;

  1. Substantively correct: Have a good reason
  2. Procedurally correct: Follow the correct procedure

When may an employee be dismissed?

According to the LRA an employer may dismiss an employee for any one of the following reasons:

  1. Misconduct. This would include any unacceptable or improper behaviour. For example, if the employee is guilty of theft, being absent without authorisation, or refusing to obey the employer’s instructions.
  2. Incapacity. This refers to the employees’ ability to perform their assigned tasks effectively. These reasons are generally referred to as poor work performance.
  3. Operational requirements. Also called retrenchment, in this situation the employer basically cannot afford the employee any longer.

Let’s discuss these reasons in slightly more detail.

What is misconduct?

Misconduct is unacceptable or improper behaviour of an employee.

It is important to note that not all misconduct will justify a dismissal, and an employer should always take the seriousness of the misconduct into consideration.

To avoid confusion the rules and regulations of a workplace should be put into writing and signed by the employee.

There must be a breakdown of the trust relationship between the employer and the employee in order for a dismissal to be an appropriate sanction.

What is incapacity?

Incapacity is the inability or the incompetence of an employee to do the work that they are employed to do. There are a number of reasons a staff member could fail to meet the required standards.

1) Incapacity as a result of poor performance:

If an employee is not meeting the performance standards of the employer, the following factors must be considered:

  • is the employee aware of the performance standards?
  • has the employee been given a chance to meet the employer’s performance standard or to improve?

If the employee still under-performs despite the employer giving them a chance, dismissal will be an appropriate sanction.

2) Incapacity as a result of ill health:

This is when the employee’s poor health or injury makes them unable of performing the work they are employed to do.

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Once the employer identifies that the employee is suffering from ill health, the following factors must be considered:

  • is the poor health permanent or temporary?
  • can the needs of the employee with ill health be accommodated in the workplace?

If the employer is able to find an alternative to dismissal they should be encouraged to do so. Alternatives could include solutions such as repositioning the staff member within the company for example.

What are operational requirements?

Operational requirements can take to form of:

  1. Economic needs: These are directly related to the companies ability to generate an income. As you can imagine this is the leading reason for retrenchment during the Lockdown.
  2. Technological needs: This occurs where new technology makes a position in the company redundant. It is becoming quite common these days as new technology is developed, and certainly something the world is going to have to address at some stage.
  3. Structural needs: Companies will sometimes need to restructure to make them more efficient. Often this leads to a number of positions simply not existing within the new company structure.

Find out more about retrenchment in this guide to retrenchments in South Africa

So now that we understand the substantial requirements, let’s have a look at the correct procedure.

What is the procedure leading up to dismissal?

The general procedure for misconduct related dismissals are:

  1. Conduct an investigation to determine if there is proof of the misconduct.
  2. Make the charges clear so that the employee has enough information to prepare for the disciplinary hearing.
  3. Give reasonable notice of the disciplinary hearing. 48 hours is generally regarded as sufficient notice and can be given in writing or orally.
  4. Provide the employee with a chance to respond to the suspected misconduct at the disciplinary hearing and to present.
  5. Grant the employee the right of representation at the disciplinary hearing.

If the chairperson decides that the employee is guilty, the chairperson must consider the mitigating and aggravating circumstances before deciding on dismissal or some other sanction.

The procedure for incapacity related dismissals are generally similar to the procedure in misconduct related dismissals, however, it is longer and a counselling process must be adopted. This means that the employee must be involved with the procedure and give his/her input from the investigation stage to the dismissal.

If the employee is absent on the day of the disciplinary hearing, without a valid reason, the chairperson may proceed with the hearing in the employee’s absence;

What remedy does an employee have if they are dismissed unfairly?

As we mentioned, a dismissal must be substantively and procedurally fair. So if an employer fires a staff member for a good reason but does not follow the correct procedure the employee can claim unfair dismissal. Also if the correct procedure was followed but the reason is unfair again the employee can claim unfair dismissal.

If an employee is of the opinion that their dismissal was unfair, the employee must refer a dispute to the CCMA within 30 days from date of dismissal.

If the staff member wins their case they may have the following options:

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  1. Have the employer reinstate them on the same terms and conditions of employment before their dismissal.
  2. Have the employer re-employ him/her, on new terms and conditions of employment.
  3. Have the employer pay compensation to them. The employee may be given compensation, depending on the circumstances, of 12 months or less.

LEGAL CONTENT DISCLAIMER

The information contained on this website is simply aimed at providing readers with guidance on labour law in South Africa. This information has not been provided to meet the individual requirements of a specific individual. Bizcraft will always suggest that legal advice be obtained to address a person’s unique circumstances. It is important to remember that the law is constantly changing and although Bizcraft strives to keep the information up to date and of high quality, it cannot be guaranteed that the information will be updated and/or be without errors or omissions. As a result, Bizcraft will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions which may result in any harm or liability flowing from the use of or the inability to use the information provided.

3 Comments

  1. Avatar
    Thandie
    May 29, 2020

    Good day. I have been working for a company for a few months now and just a week before the national shutdown she told me that she’ll have to let me go. I wasn’t contributing to UIF cause she mentioned she doesn’t contribute. Since she let me go I have been paint masks for her which I see this as still working for her or a side hustle with her. Doing these masks I was using my products (paints and sprays) and obviously working at home… My time. She paid me less of what I expected and never provided me with things to work with. Speaking out and telling her about my concerns she then told me how when I used to work for her she she was putting me first of which is mostly a lie. Now she has decided to part ways with me and I feel she was mad and feeling like I’m ungrateful. I am really shaken by most of her responses and I’m worried about her being a reference for the next job I look for. What can I do? Do I still put her as reference? Take her to CCMA?

    Reply
  2. Avatar
    Cheryl Trout
    May 21, 2020

    Good morning
    I was unfair dismissed, my case is with CCMA however due to Corona virus my date was cancelled, I’m awaiting a new date, money was stolen from my safe, I reported the case to the police to this day the police never took fingerprints from the box that was forced opened, also load shedding also occurred during this time, I asked if this could have an affect on the safe being found open, and no feedback regarding this matter, i have been working almost 4 years for this Company and never took money or steal monies that does not belong to me.

    Reply
    1. Peter Breedveld
      Peter Breedveld
      May 25, 2020

      Good Luck with your case. Let me know how it turns out.

      I look forward to hearing from you.

      Reply

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