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When is a dismissal automatically 'unfair'?

by , 27 February 2013
When you decide to dismiss an employee, it's crucial you do it fairly by following the correct procedures. But, do you know when a dismissal will automatically be deemed unfair? Read on to discover the answers so you can avoid being taken to the Labour Court for unfair dismissal.

Imagine this scenario: Your employee commits an offence. After you've followed your internal disciplinary procedure correctly, you find your employee guilty of the offence and you dismiss him. He then refers a dispute to the CCMA and says his dismissal has been unfair.

The fact is, 'whether you hold a proper disciplinary hearing or not, there are certain reasons for dismissal that are never acceptable or are automatically unfair,' says The Labour Law for Managers Loose Leaf Service.

Do you know when a dismissal is automatically unfair?

Dismissal will be regarded as automatically unfair if an employee is dismissed for:

  1. Participating in a protected strike or intending to do so. According to the Labour Guide.co.za, protected strike action refers to a lawful strike that's in compliance with the requirements of the Labour Relations Act (LRA). 'The effect of embarking on protected strike action is that no employee may be dismissed by reason of their participation in the strike, nor do they commit a breach of their contracts of employment by participating in protected strike action,' says the Labour Guide.co.za.
  2. Exercising his rights in terms of the LRA. For instance, John takes you to the CCMA for failing to promote him. If, in retaliation you fire him for taking you to the CCMA, this would be regarded as an automatically unfair dismissal.
  3. Reporting you to the relevant authorities. For instance, you can't fire your accountant for informing the South African Revenue Service (SARS) that you broke the tax law.

The consequences of being found guilty of unfair dismissal

The cost to you as an employer of an automatically unfair dismissal can be massive!
Should the Labour Court find that one of the above was the reason for the dismissal, 'it can either reinstate the employee or award compensation against the employer of up to 24 months remuneration,' says The Labour Law for Managers Loose Leaf Service. So, if the employee's pay package is R30,000 per month, you could end up paying up to R720,000 in compensation.

It's important to note that the LRA recognises three grounds on which a dismissal can be fair. These include the conduct of the employee, the capacity of the employee and the operational requirements of your business. You should abide by these grounds to stay on the right side of the law.

By knowing when a dismissal will be classified as automatically unfair, you'll be able to follow the correct procedure and you'll avoid being taken to the Labour Court for automatically unfair dismissal.



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