Legislation
The Labour Relations Act, 1995 regulates the relationship between employers and employees, and provides for collective bargaining and dispute resolution, as well as guidelines on unfair dismissals and unfair labour practices.
The Employment Equity Act, 1998 promotes equal opportunities in the workplace and eliminates unfair discrimination. It also requires that employees who do the same or similar work are paid at the same or similar level.
The Basic Conditions of Employment Act, 1997 describe the basic right for all employees in south Africa – including the national minimum wage and notice periods for dismissal. Employers are required to display the Act in their workplace.
Starting the process of dismissing an employee
To ensure that you're on the right side of the law, it's essential to understand the proper procedures for dismissing an employee. This article will give you an overview on how to dismiss an employee lawfully in South Africa. Under the Labor Relations Act, employers must follow a fair process when dismissing an employee. This includes providing the employee with a valid reason for the dismissal, giving them an opportunity to respond, and giving them access to representation.
Fair vs unfair dismissal
There are two types of dismissals in South Africa: fair and unfair.
A fair dismissal is when the employer has a valid reason to terminate the employment contract, such as misconduct or incapacity. A fair dismissal must be both substantively and procedurally fair.
An unfair occurs when the employer terminates the employment contract without a valid reason or without following the proper procedures. A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment.
It’s essential for employers to follow the correct procedure once they have grounds to dismiss an employee, as grounds for dismissal is not enough to make the dismissal “fair” in the eyes of the law.
Grounds for dismissal
There are three grounds for dismissing an employee, namely:
1. Misconduct (e.g. breaking company rules, dishonesty, criminal offence);
2. Incapacity (e.g. poor work performance, illness, etc.); or
3. Operational requirements (e.g. retrenchment).
Basic steps in the dismissal process
There are some basic steps an employer should follow to ensure a fair dismissal in terms of the Act:
1. Determine the Grounds for Dismissal:
- Misconduct: have proof of the misconduct and follow the correct procedures for a disciplinary hearing
- Incapacity: follow the correct procedures for a medical incapacity hearing
2. Give the Employee Notice:
- must be in writing and must state the reason for the dismissal
- notice period will depend on the employee's contract of employment and start date
3. Give the Employee an Opportunity to Respond:
- an employee must have an opportunity to respond to any allegations
- they must be given sufficient time to prepare their response
- they are allowed to bring a representative to the meeting.
4. Conduct a Fair Hearing:
- if the employee disputes the allegations, the employer must conduct a fair and unbiased hearing by an impartial chairperson
- both parties must be given an opportunity to present their case, address witnesses and bring witnesses of their own
5. Make a Decision
- after the hearing, the employer must make a decision on whether to dismiss the employee or not
- decision must be based on the evidence presented at the hearing, and it must be a fair and reasonable decision
- the employer must inform the employee of the decision to dismiss them in writing and provide them with the reasons for the dismissal
Each ground for dismissal has a specific procedure as outlined in the Labour Relations Act, and as such there a slight changes on the process above depending on the grounds for dismissal. An expert should be consulted before an employer embarks on any one of these processes.
Medical boarding
Medical boarding refers to the termination of an employment contract due to the employee no longer being able to carry out their employment obligations, due to illness or injury,
In the event that an employee’s medical condition or injury-related illness does not improve, an employer should first consult the employee to explore the possibility of alternative employment appropriate to the employee’s capacity. Only in circumstances where the employee can no longer perform in the position, is unable to be accommodated and/or there is no appropriate alternative employment, may the employer terminate the employment within a reasonable notice period.
Notice periods for dismissal
In terms of the Basic Conditions of Employment Act, notice periods for dismissal cannot be less than:
- one week, if the employee has been with the company for six months or less;
- two weeks, if the employee has been with the company for more than six months but not more than one year;
- four weeks, if the employee has been with the company for one year or more.
The above notice periods are a minimum requirement and may be increased by agreement in the contract of employment.
Immediate dismissal
An employee may be dismissed immediately if found guilty of gross misconduct, as soon as an appropriate disciplinary process has been conducted. Examples of gross misconduct include:
- physical violence or threats of violence;
- intoxication in the workplace;
- indecent behaviour in the workplace;
- sexist or racist abuse in the workplace;
- theft or fraud from the employer;
- misuse of company property;
- serious insubordination in the workplace;
- serious breaches of health and safety at work; or
- deliberate disclosure of sensitive or confidential data to a third party.
While gross misconduct can justify immediate dismissal, employers should still follow a fair procedure – which includes a genuine belief that the employee committed the misconduct, have reasonable grounds for believing this and be able to demonstrate an investigation into the act of misconduct, followed by a final decision. If an employer dismisses an employee without following a fair procedure, they may face a claim of unfair dismissal.
Get advice before dismissing an employee
Aucamp’s is an experienced law firm with over 35 years’ experience in labour law in South Africa. Our experts can help you to address concerns early on, conduct a fair procedure, and deal with any curveballs raised during the process so that you can maintain high-performing teams and minimise the risk of claims.
For expert advice on any labour related issues please get in touch with one of our experienced attorneys.