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South Africa
 


Source and scope of regulations - 2019    

References
  • Labour Relations Act [LRA], No. 66 of 1995, as last amended by the Labour Relations Amendment Act, No. 8 of 2018
    Date: 27 Nov 2018; view website » (view in NATLEX »)
  • Basic Conditions of Employment Act [BCEA], No. 75 of 1997 as last amended by Basic Conditions of Employment Amendment Act, No. 7 of 2018, in force as of November 2018
    Date: 27 Nov 2018; view website » (view in NATLEX »)
  • Code of good practice on dismissal (Schedule 8 to the Labour Relations Act 66 of 1995)
    [Please note that, although this Code is not binding, it should be used by employers as a guideline when exercising their powers of discipline and dismissal. In addition, it must be considered by any competent authority assessing whether or not the dismissal is fair]
    Date: 13 Dec 1995; view website »
Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: army; seafarers; state security corps
Remarks:
  • - An employee is defined as "any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration" (sec. 1 BCEA and 213 LRA).
    - The LRA which regulates unfair dismissal applies to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency and the South African Secret Service (sec. 2, LRA). The BCEA contains a similar exclusion but also excludes unpaid volunteers working for charitable organizations and merchant seamen (except for the provisions on severance pay [sec. 41]; leave [Ch. 3]; particulars of employment and remuneration [Ch. 4]; termination of employment [Ch. 5]; prohibition of employment of children and forced labour [Ch. 6]; and monitoring, enforcement and legal proceedings [Ch. 10];). These are protected against unfair dismissal under the LRA.
    - The specific provisions on the BCEA on termination of employment (i.e notice, severance pay) do not apply to employees who work less than 24 hours in a month for a employer.

Types of employment contracts - 2019    

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Maximum probationary (trial) period: no limitation

Remarks:
  • No maximum duration specified in the legislation.
    The probationary period may be negotiated and stipulated in the contract of employment. The Code of Good Practice on dismissal contained in schedule 8 of the LRA stipulates that the probationary period must be of a reasonable duration determined in advance with reference to the nature of the job and the time it takes to determine the employee's suitability for continued employment. The period of probation may only be extended for a reason that relates to the purpose of probation, and the period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve. An employer may only decide to extend the probationary period after inviting the employee to make representations and considering them (see sec. 8 (1) of the Code). (see sec. 8 (1) of the Code).

Fixed term contract (FTC):
  • FTC regulated: No
    Remarks:
    • There are no provisions in the LRA on the conditions for concluding FTCs. However, renewals of FTCs are dealt with in relation to the definition of dismissal (sec. 186 (1) b) "Dismissal means that 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".
  • Valid reasons for FTC use: no limitation
    Remarks:
    • No statutory limitation.
  • Maximum number of successive FTCs: no limitation
    Remarks:
    • No maximum number specified in the legislation. However, under the LRA an employer who fails to renew a fixed-term contract, when a 'reasonable expectation' that it will be renewed is held by the employee, is deemed to have dismissed the employee.
  • Maximum cumulative duration of successive FTCs: no limitation
    Remarks:
    • No statutory limitation.

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

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Obligation to provide reasons to the employee: Yes
Remarks:
  • 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
Remarks:
  • "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
Remarks:
  • 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
Remarks:
  • 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.


Procedural requirements for individual dismissals - 2019    

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Notification to the worker to be dismissed: written

Remarks:
  • See sec. 37(4) BCEA: Notice of termination must be given in writing and explained orally to an employee who is not able to understand it.

Notice period:
Remarks:
  • Sec. 37(1) BCEA establishes minimum notice periods to be observed by the employer when he or she intends to dismiss an employee, as follows:
    - 1 week's notice if the employee has been employed for 6 months or less,
    - 2 week's notice if the employee has been employed for more than 6 months but not more than 1 year;
    - 4 weeks if the employee has been employed for one year or more (or is a farm or domestic workers employed for more than 6 months)
    Collective agreements only provide shorter notice periods than those stipulated by the BCEA for workers with more than 1 year of service. In such cases, the notice period can be reduced to 2 weeks (sec. 37(2) BCEA).
    • tenure ≥ 6 months
      • 2 week(s).
    • tenure ≥ 9 months
      • 2 week(s).
    • tenure ≥ 2 years
      • 4 week(s).
    • tenure ≥ 4 years
      • 4 week(s).
    • tenure ≥ 5 years
      • 4 week(s).
    • tenure ≥ 10 years
      • 4 week(s).
    • tenure ≥ 20 years
      • 4 week(s).

    Pay in lieu of notice: Yes

    Remarks:
    • Sec. 38 BCEA.

    Notification to the public administration: No

    Notification to workers' representatives: No

    Remarks:
    • Except for individual dismissals based on operational requirements (see sec. 189 LRA).
      See also sec. 4(2) of the Code of Good Practice on Dismissal - schedule 8 of the LRA: Disciplinary proceedings against a trade union representative should not be instituted without first informing and consulting the union.

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2019    

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    Definition of collective dismissal (number of employees concerned):
    1) The LRA contains a provision on the procedure applicable to dismissals based on operational requirements (those based on the economic, technological, structural or similar needs of an employer) of one or more employees.

    2) In addition, there are specific additional procedural requirements applicable to any employer with more than 50 employees who contemplates to dismiss at least:
    - 10 employees out of up to 200 employees;
    - 20 employees out of 201 to 300 employees;
    - 30 employees out of 301 to 400 employees;
    - 40 employees out of 401 to 500;
    - 50 employees out of more than 500 employees.

    Remarks:
    • On the definition of operational requirements, see sec. 213 LRA.
      Sec 189 LRA applies to dismissals based on operational requirements of one or more employees.
      Sec. 189 LRA applies to dismissals based on operational requirements if the employers has more than 50 employees.

    Prior consultations with trade unions (workers' representatives): Yes

    Remarks:
    • Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
      trade unions and/or the workplace forum is mandatory. If there is no workplace forum or trade union, consultation shall take place with employees' representatives nominated for that purpose.
      The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse effects, the method for selecting employees to be dismissed and severance pay for dismissed employees. The employer must consider and respond to the representations made by other consulting parties and, if the employer does not agree with them, the employer must state the reasons for disagreeing (see sec. 189(1), (5) and (6) LRA).

    Notification to the public administration: No

    Remarks:
    • The employer is not requested to notify the labour administration when contemplating dismissals based on operational requirements.
      However, there is a specific procedure foreseen for collective dismissals applicable to employers with more than 50 employees, according to which the Commission for Conciliation, Mediation and Arbitration which is an independent tripartite body shall appoint a facilitator if requested by the employer or employee's representatives (sec. 189A LRA).

    Notification to workers' representatives: Yes

    Remarks:
    • Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
      trade unions and/or the workplace forum mandatory. If there is no workplace forum or trade union, consultation shall take place with employee's representatives nominated for that purpose (see sec. 189(1) LRA).
      The employer is obliged to disclose in writing all relevant information for the purpose of consultation (e.g. reasons for dismissal, alternatives to dismissals, number of employees affected, period during which the proposed dismissals are to occur, proposed method of selecting employees, assistance which may be rendered by the employer to the employees, possibilities of future employment). The employer must also allow employees to respond, and in turn reply to the response of the workers' representatives to these issues (see sec. 189(1) LRA) (sec. 189 (3),(5), (6) LRA)

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): No

    Remarks:
    • No list of selection criteria in the LRA.
      Selection criteria are mentioned in sec. 189 LRA as one of the elements on which the parties must attempt to reach consensus during the consultation process. If they have not been agreed to by the parties, the employer must follow fair and objective criteria.

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes

    Remarks:
    • See sec. 189(2)a), (3)b) LRA: The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse affects.
      The employer must provide information to the consulting party on the alternatives the employer considered before proposing the dismissals and the reasons for rejecting each of those alternatives. A consulting party may not unreasonably refuse to extend the period for consultation if such an extension is required to ensure meaningful consultation.

    Priority rules for re-employment: No

    Severance pay and redundancy payment - 2019    

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    Severance pay:
    Remarks:
    • There is no general right to severance pay following a fair dismissal. Severance pay is required by the BCEA (sec. 41) and the LRA (sec 196) only where the termination is for operational requirements of the enterprise, meaning requirements based on the economic, technological, structural or similar needs of an employer [covered below under "redundancy pay"]
      Redundancy payment:
      Remarks:
      • Severance pay is required by the BCEA (sec. 41) and the LRA (sec 196) only where the termination is for operational requirements of the enterprise, meaning requirements based on the economic, technological, structural or similar needs of an employer. [= redundancy pay]. It shall amount to at least one week's remuneration for each completed year of continuous service with that employer.
        This rate may be adjusted by the Minister from time to time after consultation with the competent bodies (NEDLAC and the Public Service Co-ordinating Bargaining Council).
        Note that an employee who unreasonably refuses an offer of alternative employment loses his/her right to statutory redundancy pay.
        Contracts of employment and collective agreements may provide for higher levels of redundancy pay.

      • tenure ≥ 6 months: 0 week(s)
      • tenure ≥ 9 months: 0 week(s)
      • tenure ≥ 1 year: 1 week(s)
      • tenure ≥ 2 years: 2 week(s)
      • tenure ≥ 4 years: 4 week(s)
      • tenure ≥ 5 years: 5 week(s)
      • tenure ≥ 10 years: 10 week(s)
      • tenure ≥ 20 years: 20 week(s)

      Notes / Remarks
      1) Dismissal not based on operational requirements: no severance pay
      2) Dismissal based on operational requirements: redundancy pay

      Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2019    

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      Compensation for unfair dismissal - free determination by court: No

      Remarks:
      • See sec. 194 LRA.

      Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
      1) Compensation for unfair dismissals (unfair reasons or unfair procedure): not more than 12 months' wages calculated at the employee's rate of remuneration on the date of dismissal.

      2) Compensation for automatically unfair dismissals (those based on prohibited grounds): not more than the equivalent of 24 months' wages.

      Remarks:
      • Sec. 194 LRA.

      Reinstatement available: Yes

      Remarks:
      • Sec. 193(1) a) and (2) LRA.
        Reinstatement or re-employment is mandatory unless:
        (a) the employee does not wish to be reinstated or re-employed;
        (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
        (c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
        (d) the dismissal is unfair only because the employer did not follow a fair procedure.

      Preliminary mandatory conciliation: Yes

      Remarks:
      • Pursuant to sec. 191 LRA, within 30 days of the date of the dismissal, the employee may refer the dispute about the fairness of the dismissal to a special bargaining council or to the Commission for Conciliation, Mediation and Arbitration, if no council has jurisdiction which must attempt to resolve the dispute through conciliation. If the council or the Commission does not succeed in resolving the dispute through conciliation, it is referred to arbitration by the Commission or adjudication by the Labour Court depending on the nature of the dispute (see below).

      Competent court(s) / tribunal(s): labour court

      Remarks:
      • The LRA establishes an independent, tripartite Commission for Conciliation, Mediation and Arbitration (CCMA) [see below] and a Labour Court (Chapter VII of the LRA) which both have jurisdiction over disputes of unfair dismissals depending on the nature of those dismissals (see sec. 191 (5) LRA.)
        If conciliation fails, the dispute will be referred to the Labour Court for adjudication if the employee has alleged that the reasons for dismissal are: (i) automatically unfair (see prohibited grounds); (ii) based on the employer's operational requirements (includes economic reasons); (iii) the employee's participation in a strike; or (iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.

        In addition, sec. 191(6) LRA states that the director of the Commission must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-
        (a) the reason for dismissal;
        (b) whether there are questions of law raised by the dispute;
        (c) the complexity of the dispute;
        (d) whether there are conflicting arbitration awards that need to be resolved;
        (e) the public interest.

        In the case of dismissals adjudicated by the Labour Court, an appeal against the decision of the Court is possible. Appeals from the Labour Court will be heard by the Labour Appeal Court.

        Common law claims for breach of contract in the ordinary civil courts are also possible.

      Existing arbitration: Yes

      Remarks:
      • See sec. 191 5 (a) LRA on mandatory arbitration.
        the bargaining council or CCMA for arbitration if (i) the employee has alleged that the reason for dismissal related to the employee's conduct or capacity, (ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer, (iii) the employee does not know the reason for dismissal; (iv) the dispute concerns an unfair labour practice.

      Source of additional information - 2019    

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      Links

      Use of International Law by Domestic Courts - Compendium » »
      See South Africa case under the heading "Dismissal".

      Background paper for the Tripartite Meeting of Experts to Examine the Termination of Employment Convention, 1982 (No. 158), and the Termination of Employment Recommendation, 1982 (No. 166), April 2011 »
      See the country study for South Africa on employment termination: pp. 44-47.

      Former ILO termination of employment legislation digest - South Africa (last updated in 2007) »