Everyone in South Africa has the right to fair labour practices. And everyone, through the Labour Relations Act, has the right not to be unfairly dismissed. Legislation provides three broad grounds for dismissal:
- Incapacity/ poor performance; and
- Operational requirements.
In order for a dismissal on any of these grounds to be conclusive, it must be both substantively and procedurally fair.
How precisely this will be determined depends on the facts of each matter, but the Code of Good Practice: Dismissal points employers towards the circumstances of the case and the appropriateness of dismissal as a penalty. Factors that employers should consider include:
- Is the sanction in accordance with the employer’s disciplinary code? Each employer must adopt an internal code that provides clear rules and progressive discipline;
- Would a lesser sanction be sufficient to serve the disciplinary purpose?
- Could the employer reasonably have been expected to continue with the employment relationship?
- How grave is the offence?
- Is dismissal consistently applied for the offence, or have employees been disciplined less harshly for the same offence before?
- Does the employee already have a disciplinary record?
- How long has the employee been with the employer?
- What are the employee’s personal circumstances?
Even if all of the above factors point towards dismissal, an employee should be given the opportunity to make representations in mitigation of the sanction in order for the dismissal to be procedurally fair. Employees will have right of recourse to the Commission for Conciliation, Mediation and Arbitration (CCMA) to contest the fairness of their dismissal, and parties may review a decision made there in the Labour Court thereafter. Separately from these remedies, an employee may sue for contractual damages if their employment contract has been unlawfully terminated.
In order to avoid these consequences, dismissal should truly be a measure of last resort for employers, and only resorted to after a fairly conducted disciplinary hearing.