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South Africa - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - South Africa - 2019    

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Obligation to provide reasons to the employee: Yes
  • Although there is no general provision in the LRA on the obligation to give the employee the reasons for dismissal, this obligation is implied from several provisions of this Act and in particular the Code of Good Practice on Dismissal contained in the schedule 8 to the LRA.
    The Code of Good Practice details the key aspects (including procedural requirements) of individual dismissals for reasons related to conduct and capacity (see valid grounds).
    * As far as misconduct is concerned, the Code stipulates that the employee has to be informed of the allegations against him or her and has to be given a chance to respond (where necessary, with the assistance of trade union or employees' representatives). If the employee is dismissed, he or she should be given the reasons for dismissal (art. 4 (1) and (4) Code of Good Practice).
    * With regard to incapacity /poor work performance, the obligation to provide reasons is not expressly stated in the Code. However, dismissal during the probationary period cannot take place before the employer has informed the employee that he or she fails to meet performance standards and the employee has had the opportunity to respond by making representations himself or through a trade union representative or fellow employee (sec. 8(1) of the Code).
    With regards to employees having completed the period of probation, the Code stipulates that the procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance (sec. 8(2) of the Code).
    In the event of dismissal based on incapacity/ ill health or injury, the employer shall also conduct an investigation and allow the employee to state a case in response and to be assisted.
    * Lastly, for dismissals based on operational requirements, the reasons for dismissal are communicated to the employees through the compulsory process of consultation with the trade unions or the workplace forum (see art. 189 (1) and (3)a) LRA).

    In any case, the employer will have to explain the reasons for the dismissal before the competent authority in charge of deciding whether or not the reason for dismissal is a fair reasons (sec. 188 LRA, see "valid grounds")

Valid grounds (justified dismissal): any fair reasons
  • "Any fair reasons" should be understood as meaning: "any fair reasons related to workers’ conduct, workers’ capacity, and economic reasons".

    Sec. 188 of the LRA stipulates that a dismissal is unfair where the employer fails to prove that the dismissal was effected for a fair reason connected with the employee's conduct or capacity or based on the employer's operational requirements. (see also sec. 2 of the Code of Good Practice, Schedule 8 to the LRA).
    The Code of Good practice which shall be considered by any competent authority assessing whether or not the dismissal is fair contains detailed provisions including guidelines on dismissals for misconduct, dismissals for poor work performance and dismissals arising from health injury.

    Please also note that a dismissal is also unfair if not effected in accordance with a fair procedure which includes taking account of the Code of Good Practice (see sec. 188 (2) LRA and the Code of Good Practice).

Prohibited grounds: marital status; pregnancy; family responsibilities; filing a complaint against the employer; race; colour; sex; sexual orientation; religion; social origin; age; trade union membership and activities; disabilities; language; participation in a lawful strike; whistle blowing; ethnic origin
  • The LRA provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions (i.e trade union or workplace forum membership or activities), or if the reason is one of those listed in section 187. These are:
    * participation in, support to, or intention to support a lawful strike
    * the employee refused to do any work normally done by an employee who is participating in a lawful strike unless the work is necessary to prevent an actual danger to life, personal safety or health,
    * compelling an employee to accept a demand concerning a matter of mutual interest between the employer and employee;
    * the exercise of a right under the LRA, or participation in any labour proceedings;
    * pregnancy or maternity; or
    * unfair discrimination based on any arbitrary ground, including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility unless the reason for dismissal is based on an inherent requirement of the particular job;
    * dismissal based on age, unless the employee has reached the normal or agreed retirement age for employees in that capacity;
    * a transfer, or a reason related to a transfer of contract of employment contemplated in section 197 or 197A LRA; or
    * a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.

Workers enjoying special protection: workers' representatives
  • Protection only applicable to disciplinary dismissals:
    According to sec. 4(2) of the Code of Good Practice, disciplinary proceedings against a trade union representative should not be instituted without first informing and consulting the trade union.