South Africa
 

Source and scope of regulations - 2012    

References

• Labour Relations Act [LRA], No. 66 of 1995, as last amended by the Labour Relations Amendment Act, No. 12 of 2002
  Date: 26 Jun 2002; view website »
• Basic Conditions of Employment Act [BCEA], No. 75 of 1997 as last amended by Basic Conditions of Employment Amendment Act, No. 11 of 2002
  Date: 18 Jun 2002; view website »
• 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

Types of employment contracts - 2012    

Maximum probationary (trial) period: no limitation

Fixed term contract (FTC):

• FTC regulated: No
• Valid reasons for FTC use: no limitation
• Maximum number of successive FTCs: no limitation
• Maximum cumulative duration of successive FTCs: no limitation

Substantive requirements for dismissals (justified and prohibited grounds) - 2012    

Obligation to provide reasons to the employee: Yes

Valid grounds (justified dismissal): any fair reasons

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

Workers enjoying special protection: workers' representatives

Procedural requirements for individual dismissals - 2012    

Notification to the worker to be dismissed: written

Notice period:

• 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

Notification to the public administration: No

Notification to workers' representatives: No

Approval by public administration or judicial bodies: No

Approval by workers' representatives: No

Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2012    

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.

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

Notification to the public administration: No

Notification to workers' representatives: Yes

Approval by public administration or judicial bodies: No

Approval by workers' representatives: No

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

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

Priority rules for re-employment: No

Severance pay and redundancy payment - 2012    

Severance pay:

Redundancy payment:

• 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 - 2012    

Compensation for unfair dismissal - free determination by court: No

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.

Reinstatement available: Yes

Preliminary mandatory conciliation: Yes

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

Existing arbitration: Yes

Source of additional information - 2012    

Links

Use of International Law by Domestic Courts - Compendium » »
Under 'Compendium of Court Decisions' in left-hand side bar, click on 'Decisions by Subject'. Then under 'Contract of employment: working conditions and termination', click on 'Dismissal'. See cases No. 3.

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) »