When can you be Fired in South Africa?
What is Unfair Dismissal?
If you find yourself under threat of dismissal, check this list carefully, before you consent. Because if you consent, you lose all your rights, including the right to apply for unemployment benefits. If you are, however, dismissed against your will and you did not do anything wrong (misconduct), you are entitled to unemployment benefits.
According to the law (LRA s187) it is unfair to dismiss a worker for:
- Participating in a protected strike
- Failure to perform the work of strikers during a strike (unless essential to prevent actual danger to life, personal safety or health)
- Compelling the acceptance of a demand
- For exercising a right conferred by the Act mentioned above
- For participating in proceedings against an employer
- (Intended) pregnancy
- Discrimination (race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility)
- Age (unless normal or agreed retirement age)
What if I am charged with Misconduct?
Now you may may have a problem. What is considered misconduct on the shop floor?
If you go against a rule prohibiting a particular behaviour or conduct, and this rule is reasonable and/or valid (especially according to the law), you, as the employee in question, could reasonably have been expected to be aware of this rule.
But that’s not the end of the story. Now the following questions must be faced and answered, if you breached this rule:
Is the dismissal fair, i.e. the appropriate sanction for breaching this particular rule?
Did your employer consider personal, mitigating circumstances or factors?
Did your employer consider aggravation?
Did your employer consider the nature of the job?
Did it happen before, in other cases?
And there is a following set of procedural questions to consider:
Was a hearing held prior to the decision to dismiss?
Was it held within a reasonable time of the incident?
Was it presided over by an impartial third party?
Was an interpreter provided where necessary?
Did you have the opportunity to defend yourself?
Were the facts of the case investigated?
Were you notified of the allegation or charges?
Did you have reasonable time to prepare a response?
Did you have the opportunity to call witnesses and to question the employer's witnesses?
Were you informed of the findings of the enquiry?
Were you reminded of your right to appeal to the CCMA?
A difference should be made between employees on probation and employees under a normal contract. These are basic questions applicable to a worker who is on a normal contract:
Did you receive evaluation, training and counselling?
Before dismissal, were you given an opportunity to present your case, assisted by a co-employee?
Were you afforded a fair opportunity to improve?
If poor work performance persisted, were the reasons investigated?
Were alternative measures considered, e.g. possible alterations of job content, demotion or transfer, possible training/re-training for future improvement?
Probationary employees should answer this crucial question:
Was the probationary period reasonable in the circumstances?
First of all, there should be an investigation conducted to establish the extent of the incapacity/illness and the prognosis. This investigation should establish:
To what extent you are still able to perform the work
To what extent your duties can be adapted
What is the availability of suitable alternative work?
If medical boarding is an option
If retirement is an option.
The extent of sick leave available
The nature of the job
The period of absence
The seriousness of the illness
Whether the illness/disability was work-related
The possibility of appointing a temporary replacement
Your right to be heard and represented.
In such cases two questions should always be asked:
Was dismissal the only reasonable option?
Were the employees/their representatives consulted?
If the employer goes ahead with the dismissal, regardless of the answers to the above two questions, she or he must supply the following information in writing:
The reasons for the retrenchment
Alternatives that were considered and the reasons for rejecting them
The number of employees to be affected
Proposed selection criteria and their fairness
Proposed implementation date
Proposed severance pay
Assistance to employees
Up to 4 weeks' service : 1 week notice
4 weeks up to 1 year : 2 weeks notice
More than 1 year service or farm/domestic worker with more than 4 weeks service : 4 weeks notice
The following may be included as pay on the final pay slip:
Pro-rata leave pay
Notice pay (unless notice worked/resigned/summary dismissal)
Pro-rata bonus (unless discretionary)
Severance pay (at least 1 week per completed year of service).
For more information on your rights after you've been dismissed, please check www.lawinfo.org.za
Find out all about state Minimum Wages for all official sectors.