Employment and Labour Law

 

 

Yes! VDM Attorneys are experienced unfair dismissal lawyers. We can:

  • Assess your case and advise you on your rights.
  • Help you prepare and refer your case to the CCMA.
  • Represent you at conciliation, arbitration, and the Labour Court.
  • Fight for the best possible outcome, whether reinstatement, re-employment, or compensation.

Yes, the CCMA (Commission for Conciliation, Mediation and Arbitration) can help with unfair dismissal disputes. 
 

Immediately.  There are strict time limits (30 days) to refer an unfair dismissal dispute to the CCMA.  Don't delay in seeking legal advice to protect your rights.

There are three main types:

  1. Procedural Unfairness: The correct process wasn't followed, even if there was a reason for dismissal.
  2. Substantive Unfairness: There was no valid or fair reason for the dismissal, even if the procedure was followed.
  3. Automatically Unfair Dismissal: The dismissal was for an illegal reason specifically listed in the LRA (e.g., pregnancy, union activity).

For a claim of constructive dismissal to be successful, an employee generally needs to prove the following:

  • Resignation: The employee must have resigned from their position.
  • Intolerable Working Conditions: The working conditions created by the employer were so unbearable that the employee had no reasonable alternative but to resign. This could include harassment, bullying, discrimination, unsafe working conditions, or unilateral changes to the employment contract.   
  • Employer's Responsibility: The intolerable conditions were caused by the employer's actions or omissions.   
  • Causal Link: There must be a direct link between the employer's conduct and the employee's decision to resign. The resignation must be a direct consequence of the intolerable conditions.   
  • No Reasonable Alternative: The employee must demonstrate that they had no other reasonable option to resolve the issue within the workplace before resigning (e.g., using internal grievance procedures).   
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Unfair Dismissal

Unfair Dismissal with VDM Attorneys - Fighting for Your Rights

Job loss can be devastating, impacting finances and dignity. South African law protects employees from unfair dismissal. If you believe you've been unfairly dismissed, you don't have to face it alone. VDM Attorneys, specialist labour lawyers, offer expert guidance to assess your situation and fight for the justice and compensation you deserve.  This page explains unfair dismissal in South Africa and how we can help.

What is Unfair Dismissal? A Legal Definition

Unfair dismissal in South African law is termination of employment without a fair reason and fair procedure.  The Labour Relations Act (LRA) ensures dismissals are not arbitrary or unjust, balancing employer and employee power.  "Fairness" includes both the reason (substance) and process. Unfairly dismissed employees can receive significant compensation, up to 12 months' salary, or 24 months' for automatically unfair dismissals

Understanding Unfair Dismissal - Key Categories

South African law recognizes three main categories under which a dismissal can be deemed unfair

1. Procedural Unfairness - The Wrong Process

Procedural fairness is about how your employer handled the dismissal process.  Even if a valid reason for dismissal exists, the dismissal can still be unfair if the correct and fair procedures weren't followed.  These procedures are designed to ensure you have a fair chance to respond and defend yourself. Key aspects of procedural fairness include

  • Proper Investigation Your employer should have conducted a reasonable investigation into any allegations of misconduct or poor performance before taking disciplinary action.
  • Impartial Hearing Any disciplinary hearing should be chaired by a neutral person who can objectively assess the facts.
  • Clear Notice of Charges You are entitled to be informed, in a language you understand, of the specific allegations against you, and given sufficient time to prepare your defense.
  • Right to Be Heard You must be given a genuine opportunity to state your case, present your evidence, and respond to your employer's allegations.
  • Right to Representation You generally have the right to be assisted or represented at a disciplinary hearing by a trade union representative or a fellow employee.
  • Access to Information You should have access to any documents or evidence your employer intends to use against you.
  • Right to Question Evidence You should be allowed to question your employer's witnesses and present your own witnesses.
  • Clear Outcome and Reasons You must be formally notified of the dismissal decision and be provided with clear, understandable reasons for the dismissal.

2. Substantive Unfairness - No Fair Reason

Substantive fairness looks at the actual reason for your dismissal.  Even with perfect procedure, a dismissal can be unfair if the reason itself isn't valid or justifiable under labour law. Fair reasons for dismissal are generally limited to

  • Misconduct This involves you breaking a reasonable workplace rule or engaging in serious misconduct. For dismissal to be fair on this basis, the rule must be valid and reasonable, you must have been aware of it, it must be consistently applied by the employer, and dismissal must be a proportionate response to the specific misconduct. Minor offenses usually require progressive discipline (warnings) before dismissal can be considered fair.
  • Incapacity This relates to your inability to perform your job duties. This could be due to poor work performance, illness, or disability. For dismissal based on incapacity to be fair, your employer must have provided you with adequate support, training, guidance, and explored reasonable alternatives to dismissal.
  • Operational Requirements (Retrenchment) This is when your position becomes redundant due to the employer's genuine operational needs, such as economic downturn, restructuring, or technological changes. Retrenchment must be for a valid operational reason and must follow a fair consultation process with employees or their representatives.

3. Automatically Unfair Dismissal -  Illegal Reasons

The LRA lists specific reasons for dismissal that are considered automatically unfair.  Dismissing you for any of these reasons is illegal, regardless of the procedure followed.  These dismissals often relate to fundamental rights and carry heavier penalties for employers. Automatically unfair reasons include dismissal for

  • Exercising your rights under the LRA This includes joining a union, participating in lawful strikes, or taking part in proceedings under the LRA.
  • Pregnancy or any reason related to pregnancy.
  • Refusing to accept changes to your terms and conditions of employment.
  • Discrimination Dismissal based on race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, political opinion, culture, language, marital status, family responsibility, or any other arbitrary ground (unless based on the inherent requirements of the job, which is very narrowly defined).
  • Making a protected disclosure (whistleblowing) under the Protected Disclosures Act.
  • Reasons related to a company merger or transfer in certain circumstances.

What Constitutes "Dismissal" in Law?

The legal definition of dismissal is broader than simply being fired. It also includes situations where

  • Direct Termination Your employer tells you your employment is ending (with or without notice).
  • Payment in Lieu of Notice You are told to leave immediately and are paid your notice period in cash.
  • Retrenchment Your position is made redundant due to operational reasons.
  • Constructive Dismissal Your employer creates an intolerable working environment, forcing you to resign (e.g., through harassment, demotion without justification, or drastic changes to your job).
  • Unfair Non-Renewal of Fixed-Term Contracts If you had a reasonable expectation that your fixed-term contract would be renewed, and it isn't, or is renewed on worse terms, this can be deemed a dismissal.
  • Refusal to Reinstate After Maternity Leave Your employer refuses to allow you to return to your job after maternity leave.
  • Dismissal Following Transfer on Less Favourable Terms You resign because a business transfer resulted in substantially worse working conditions for you.
     

Fair Dismissal - When Can an Employer Justifiably Dismiss You?

A dismissal is considered fair only if your employer can prove both substantive fairness (a valid and fair reason for dismissal) and procedural fairness (a fair process was followed).  Even with a valid reason, failing to follow fair procedure makes the dismissal unfair. Employers are expected to adhere to the Code of Good Practice: Dismissal in Schedule 8 of the LRA.

Fair Reasons for Dismissal (if Procedurally Fair)

  • Misconduct Serious offenses like theft, violence, gross dishonesty, persistent insubordination, or repeated serious breaches of workplace rules.
  • Incapacity Genuine inability to perform your job duties after your employer has made reasonable efforts to accommodate you, due to persistent poor performance or proven medical incapacity.
  • Operational Requirements (Retrenchment) Legitimate and justifiable operational reasons that necessitate workforce reduction, implemented through a fair consultation process.

What to Do if You Believe You Have Been Unfairly Dismissed

If you suspect your dismissal was unfair, it's crucial to act quickly to protect your rights

  • Seek Legal Advice Immediately Contact VDM Attorneys as soon as possible. We will assess your situation, explain your rights, and advise you on the best course of action.
  • Refer a Dispute to the CCMA You must refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) within 30 days of your dismissal date. The CCMA is a neutral body tasked with resolving labour disputes.
  • CCMA Processes The CCMA will first attempt conciliation (mediation) to help you and your employer reach a settlement. If conciliation is unsuccessful, the matter may proceed to arbitration at the CCMA (for most unfair dismissal cases) or be referred to the Labour Court (for automatically unfair dismissals and certain complex cases).

Remedies for Unfair Dismissal

If the CCMA or Labour Court finds your dismissal was unfair, they can order your employer to provide remedies, which may include

  • Reinstatement You are given your job back as if the dismissal never happened, often with back pay for lost wages.
  • Re-employment You are given your job back, but possibly on different terms, potentially starting as a "new" employee (less common than reinstatement).
  • Compensation You are awarded financial compensation for your unfair dismissal. This can be up to 12 months of your salary for general unfair dismissal and up to 24 months' salary for automatically unfair dismissal.

The Burden of Proof

In unfair dismissal cases, you, the employee, initially need to prove that a dismissal took place.  Once dismissal is established, the onus shifts to your employer to prove that the dismissal was fair in all respects (both substantively and procedurally).

Automatically Unfair Dismissal in Detail

As mentioned, certain dismissals are automatically unfair under Section 187 of the LRA.  These are considered particularly egregious violations of employee rights.  Dismissal for the following reasons are automatically unfair:

  • Exercising LRA Rights Dismissal for exercising any right granted to you by the Labour Relations Act (LRA), or for participating in any proceedings under the LRA.
  • Union Activities Dismissal for participating in lawful union activities, supporting a protected strike, or refusing to do the work of a striking or locked-out employee (unless that work is essential to prevent immediate danger).   
  • Refusal to Accept Demands Dismissal for refusing to accept an employer's demand regarding a matter of mutual interest (e.g., a pay cut).
  • Pregnancy Related Dismissal Dismissal for pregnancy, planned pregnancy, or any reason related to pregnancy.
  • Discrimination Dismissal based on unfair discrimination (as listed earlier: race, gender, etc., unless it's an inherent job requirement).
  • Protected Disclosure (Whistleblowing) Dismissal for making a protected disclosure as defined in the Protected Disclosures Act.
  • Transfer Related Dismissal Dismissal for reasons related to a transfer of business in certain circumstances (mergers, insolvency transfers).
  • In cases of automatically unfair dismissal, if conciliation at the CCMA fails, the dispute is referred to the Labour Court for adjudication, and compensation awards can be significantly higher (up to 24 months' salary).

Code of Good Practice - Dismissal Highlights

Schedule 8 of the LRA provides a Code of Good Practice - Dismissal, offering guidelines for fair dismissals related to misconduct and incapacity. Key principles from the Code include

  • Corrective or Progressive Discipline Employers are encouraged to use a system of progressive discipline, aiming to correct employee behaviour through warnings and counseling before resorting to dismissal for less serious offenses.
  • Fair Procedure Requirements The Code outlines the essential elements of a fair procedure, including investigation, notice of charges, opportunity to be heard, and representation.
  • Factors to Consider in Misconduct Dismissals When assessing the fairness of a misconduct dismissal, factors to consider include whether a workplace rule was broken, if the rule was reasonable and known to employees, if it was consistently applied, and if dismissal was a proportionate sanction.
  • Fair Procedure in Incapacity Dismissals For dismissal due to poor performance, the employer should have provided adequate training, guidance, and a reasonable period for improvement. For dismissal due to ill-health or injury, the employer should investigate the extent and duration of the incapacity and explore alternatives to dismissal.
  • Retrenchment Consultation The Code emphasizes the importance of a meaningful consultation process with employees or their representatives during retrenchment, covering reasons for retrenchment, alternatives considered, selection criteria, severance pay, and other relevant issues.

Let VDM Attorneys Be Your Voice for Fairness!

If you believe you have been unfairly dismissed, don't navigate this complex legal landscape alone. VDM Attorneys are passionate about protecting employee rights and ensuring fair labour practices in South Africa.  We are here to

  • Provide expert assessment of your dismissal.
  • Offer clear, practical legal advice tailored to your situation.
  • Aggressively represent you at the CCMA and Labour Court.
  • Fight for the maximum compensation or reinstatement you deserve.

ContactVDM Attorneys for sound legal advice if you are faced with any Unfair Dismissal queries.