Terminating employment on notice

South African labour laws allow employment contracts to be terminated on notice but only employers have to provide a valid and fair reason related to conduct or capacity or based on operational requirements but is this not unconstitutional and how does s 36 of the Constitution apply?

The constitutional tension is at the heart of South African labour law.

✅ The Issue

Under the common law, any party (employer or employee) may terminate an employment contract on notice, even without giving a reason.

However, the LRA (Labour Relations Act) limits this right for employers only:
An employer may not dismiss unless the dismissal is both:

  • Substantively fair (valid reason — conduct, capacity, or operational requirements), and
  • Procedurally fair (proper process).

Employees can still resign on notice without giving reasons. Employers cannot dismiss on notice without justification.

This creates an asymmetry. Is this unequal treatment unconstitutional?

⚖️ Is it unconstitutional?

At first glance, it might seem to violate:

  • Section 9 — Equality
  • Section 22 — Freedom to choose & practice an occupation
  • Section 23 — Right to fair labour practices
  • Section 10 — Dignity

But the Constitutional Court and Labour Courts have consistently held:

The LRA’s protections are not unconstitutional — they are constitutionally required.

Why? Because employees are the vulnerable party in the employment relationship. The law is allowed — and required — to treat unequal parties differently in order to achieve real fairness.

This is called “substantive equality” — you treat people differently when their positions are unequal.

???? So how does Section 36 (limitations clause) apply?

Section 36 of the Constitution allows rights to be limited if the limitation is:

  1. In terms of a law of general application ✅ (the LRA is such a law)
  2. Reasonable and justifiable in an open and democratic society, taking into account:
    • The nature of the right
    • Importance of the purpose of the limitation
    • Nature/extent of the limitation
    • Relation between the limitation and its purpose
    • Less restrictive means available

Applying s 36 to the LRA’s dismissal rules:

Factor Analysis
Right limited Employer’s contractual freedom to dismiss at will
Importance of limitation Protects employees from unfairness, job loss = major impact on dignity, livelihood, equality
Extent of limitation Employers must give valid reason + follow fair process — not an absolute bar
Relation to purpose Ensures fairness and prevents abuse
Less restrictive means? Mild regulation (notice + reason) is already minimal — more extreme protection exists in some countries

✅ Therefore, the restriction survives s 36 scrutiny.

???? Constitutional Principle

The LRA gives effect to Section 23(1) of the Constitution:

“Everyone has the right to fair labour practices.”

The employer’s common-law freedom to dismiss is not a constitutional right.
The employee’s right to fair labour practices is a constitutional right.
So when the two clash, the employee’s right prevails.

The Constitutional Court said this explicitly in Sidumo v Rustenburg Platinum Mines (2007):

“The LRA gives effect to the constitutional right to fair labour practices.”

???? But why don’t employees also need a fair reason to resign?

Because resignation does not harm the employer in the same way dismissal harms the employee. Losing a job affects:
✅ Livelihood
✅ Social security
✅ Identity and dignity
✅ Economic survival
✅ Power imbalance

Employers can replace employees. Employees cannot “replace” employment as easily. So the impact and power are not symmetrical.

Thus, treating them differently is constitutionally justifiable.

✅ Bottom line

  • It is not unconstitutional that only employers must give valid reasons.
  • This difference promotes equality, dignity, and fair labour practices.
  • Section 36 supports the limitation of employers’ common-law freedom to dismiss.
  • The LRA is the constitutional implementation of workers’ rights, not a deviation from the Constitution.

???? If you’d like…

I can also expand on:
✅ Key Constitutional Court cases on this issue
✅ How “notice in terms of contract” interacts with “dismissal in terms of LRA”
✅ Comparisons with other countries
✅ Whether an employee could ever be compelled to justify resignation (e.g. constructive dismissal)