What constitutes a dismissal and secondly how is it determined that the dismissal is unfair?

What brings about the topic of dismissal is that sometime in the past an employer and an employee entered into an employment relationship. This relationship comes about when on the one hand the employer offers a job or work to the person who, on the other hand, after accepting such an offer becomes known as an employee.

This employment relationship is typically governed by the labour laws of the country. In South Africa such a law is known as the Labour Relations Act, Act 66 of 1995 (hereinafter referred to only as LRA).

DISMISSAL

At the beginning of the enquiry into the case relating to dismissals, it must first be established that, indeed a dismissal took place. The one who bears the onus to prove this is the employee. Section 192 LRA deals with the onus in dismissal disputes, subsection 1 of this section provides that:

• In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

In its most basic form, dismissal may be described as an act by the employer that results in the termination of the employment relationship.

Dismissal may be fair or unfair under the South African labour laws.

Section 186 of the LRA defines dismissal and unfair dismissal as follows:

“(1) “Dismissal” means that-

(a) an employer has terminated a contract of employment with or without notice;

(b) an employee reasonably expected the employer to renew a fixed term contract of

      employment on the same or similar terms but the employer offered to renew it on less

     favourable terms, or did not renew it;

(c) an employer refused to allow an employee to resume work after she-

(i) took maternity leave in terms of any law, collective agreement or her contract of

    employment; or

(ii) was absent from work for up to four weeks before the expected date, and up to eight weeks

      after the actual date, of the birth of her child;

(d) an employer who dismissed a number of employees for the same or similar reasons has

     offered to re-employ one or more of them but has refused to re-employ another; or

(e ) an employee terminated a contract of employment with or without notice because the

   employer made continued employment intolerable for the employee. (f) an employee  

   terminated a contract of employment with or without notice because the new employer,

  after a transfer in terms of section 197 or section 197A, provided the employee with

  conditions or circumstances at work that are substantially less favourable to the employee  

 than those provided by the old employer.

The LRA requires that the dismissal must be fair. And if the employer dismisses the employee, the employer is required to give the employee concerned notice of intention to dismiss. Failure to do this may land the employer in the wrong side of the law. However, if the employee has seriously breached the contract, particularly the term of the contract that falls under what is called material terms, the employer may summarily dismiss the employee. This means that the employer may dismiss the employee without first giving them notice. The notice period that the employer must give to the employee is regulated by the Basic Conditions of Employment Act and is not discussed here.

UNFAIR DISMISSAL

In order to find itself on the right side of the law, the employer must always ensure that the dismissal is fair in the eyes of the law.

Section 185 of the LRA is very clear on the issue of unfair dismissals. The section provides that “every employee has the right not to be unfairly dismissed”

In order for the dismissal to be considered fair, one has to look for guidance from section 188 of the LRA. The section dictates that:

(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove-

                 (a) that the reason for dismissal is a fair reason-

(i) related to the employee’s conduct or capacity; or

(ii) based on the employer’s operational requirements; and

(b) that the dismissal was effected in accordance with a fair procedure.

• Any person considering whether or not the reason for dismissal is a fair reason or whether

 or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act

The two requirements found in section 188 (1) emphasized above, are that, for it to be fair, a dismissal based on misconduct must, 1, meet the substantial fairness test. This means that there must be a valid reason for the dismissal to take place. The misconduct that the employee is accused of will typically be the reason given to meet this requirement. The other reasons typically that meet this requirement is the employees Incapacity and the company’s operational requirements.

The seond requirement in section 188 is that the section dictates that a dismissal for misconduct must be arrived at by following a fair procedure. A dismissal which is procedurally fair entails that, there must be a fair disciplinary enquiry at which the employer will state the charges against the employee and, importantly, the employee will have an opportunity to state his or her case. This is known as the right to be heard or the audi alteram partem principle.

Subsection 2 of section 188 refers to the code of good practice which provides some guidance in this regard and must be taken into consideration.

Employers are encouraged to have in place a code of conduct for employees and ensure that the employees know about the existence of such a code at th