This is a very brief outline of the current position regarding ‘dismissals’ or involuntary termination of employment.   South African common law and two statutes (LRA and BCEA) provide employees with rights not to be unlawfully, invalidly or unfairly dismissed.   Employees do not have a job for life.

Employers must follow a fair procedure, in the sense that employees have a right to be heard before any final decision is taken.

Employers are not prevented from acting in the best interests of the business and dismissing employees

  • on reasonable notice, or
  • summarily (without notice) but only when there is clear proof of ‘gross misconduct’ or material breach of contract.

The employer’s reason for dismissal must be

  • related to the employee’s behaviour or performance; or
  • based on the operational requirements of the business.

Essentially the final test on behaviour and performance boils down to whether an employee has

  • destroyed or seriously damaged the necessary reciprocal need for a relationship of trust and confidence; or
  • made an on-going working relationship intolerable.

Employers who base the reason for dismissal on ‘operational requirements’ must

  • follow a statutory procedure of joint consensus-seeking; and
  • prove that any dismissal was in the best interests of the business and taken in good faith.

Apart from reasonable notice pay, such employees also have a statutory right to severance pay (one week’s pay for every year of service).

Employees who believe dismissals are invalid, unlawful or unfair have the right to refer disputes to the

  • Labour Court for adjudication (unlawfulness) ; or
  • CCMA for compulsory mediation and then compulsory arbitration (unfairness).

Employers have to prove on clear and convincing evidence that the dismissal was completely fair, procedurally and substantively.

The Labour Court may review and set aside any arbitration award when the award is one that a reasonable arbitrator could not have made.

It is not easy to challenge awards unless they are really out of line with what is expected from reasonable arbitrators or they made a complete mess of the process.

Judgments of the Labour Court can be appealed to the Labour Appeal Court, and in certain instances to the Supreme Court of Appeal and even to the Constitutional Court.

This process may take more than four years and will be very costly and because opinions differ on what is unfair, as opposed to unlawful, it is almost impossible to predict the outcome of any dispute.