THE MEANING OF DISMISSAL
THE IMPORTANCE OF UNFAIR DISMISSALS
Protection of the employee under common law:
• CL offers employees virtually no protection against unfair dismissal.
• Primary Question is lawfulness
• Either termination on notice (reason and procedure irrelevant), or summary termination (if
serious breach by employee)
The development of the law of unfair dismissal:
• International labour standards and International Labour Organisation (ILO) played a
formative part.
• Most NB international labour standard -> Termination of Employment Convention 158 of
1982.
◦ Effect -> employer must have fair reason to terminate employment contract
◦ Lays foundation for fairness of reasons for dismissal, & sets standards in respect of
pre-dismissal procedures.
◦ Principles remain the core of SA labour law regarding unfair dismissal
• The employer is obliged to consult with the representative about measures to avoid
dismissal and if the dismissal can't be avoided, about measures to minimise the number
of dismissals
• When unfair labour practice introduced into labour legislation in 1980's
◦ Development of law of unfair dismissalL
▪ Today codified in LRA read with Codes of Good Practice
• Especially COGP: Dismissal -> Schedule 8 of LRA which deals with misconduct
and incapacity.
Unfair dismissal in terms of the LRA:
• Point of Departure -> S185: Every employee has the right not to be unfairly dismissed
• In all dismissal disputes -> three possible sub-disputes:
1. Employee - as discussed in chapter 3
2. Dismissal - the three that are important in practice:
a. S186(1)(a)
b. S186(1)(b)
c. S186(1)(e)
3. Fairness - question completely separate from existence of a dismissal
a. First question -> automatically unfair? S187 LRA - 9 reasons (cases are heard by the
Labour Court)
, b. Second question -> if not automatically unfair, otherwise fair?
• S188 LRA (operational requirements cases go to Labour Court, misconduct and
incapacity cases go to Bargaining Council / CCMA)
• In most dismissal disputes:
◦ Status as 'employee' and 'dismissal' not in dispute - we go straight to fairness.
• Note: onus to prove 'employee' / 'dismissal' on employee; onus to prove fairness on
employer Jurisdiction to hear unfair fismissal cases in the first instance is divided up
between bargaining councils, CCMA & LC (depending on reason for and nature of
dismissal)
◦ S191(5) LRA
Section 188 LRA:
• Dismissal, if not automatically unfair, may be fair if two requirements are met:
1. Employer must have fair and valid reason related to misconduct / incapacity /
operational requirements (substantive fairness)
a. Misconduct -> individual fault on the side of thee employee (intent / negligence)
b. Incapacity (poor work performance / medical incapacity) -> relates to the individual
employee, but there is no fault on the side of the employee. Has best intentions of
trying to do the job properly.
c. Operational requirements -> also no fault, but external to employee - job disappears
as a result of economic, technological, structural or similar reasons (definition in
S213 of the LRA).
2. Fair procedure must be followed before employer dismisses employee (procedural
fairness) - for each of the 3 reasons, a procedure is prescribed
a. Where do we find the rules?
i. Misconduct -> Code of Good Practice: Dismissal
ii. Incapacity -> Code of Good Practice: Dismissal
iii. Operational Requirements -> S189 / S189A LRA + Code of Good Practice
Substantive and Procedural Fairness
• Dismissal will be unfair if either is missing
• Which is more important?
◦ BOTH NB
• 3 remedies for unfair dismissal:
1. Reinstatement
2. Reemployement
3. Compensation (limited ito S194)
• The word OR stands in between -> you have the option of one or another.
• S193 -> the preferred remedies: reinstatement / reemployment BUT - this preference falls
away if (S193(2)):
◦ Employee does not want it
2
THE IMPORTANCE OF UNFAIR DISMISSALS
Protection of the employee under common law:
• CL offers employees virtually no protection against unfair dismissal.
• Primary Question is lawfulness
• Either termination on notice (reason and procedure irrelevant), or summary termination (if
serious breach by employee)
The development of the law of unfair dismissal:
• International labour standards and International Labour Organisation (ILO) played a
formative part.
• Most NB international labour standard -> Termination of Employment Convention 158 of
1982.
◦ Effect -> employer must have fair reason to terminate employment contract
◦ Lays foundation for fairness of reasons for dismissal, & sets standards in respect of
pre-dismissal procedures.
◦ Principles remain the core of SA labour law regarding unfair dismissal
• The employer is obliged to consult with the representative about measures to avoid
dismissal and if the dismissal can't be avoided, about measures to minimise the number
of dismissals
• When unfair labour practice introduced into labour legislation in 1980's
◦ Development of law of unfair dismissalL
▪ Today codified in LRA read with Codes of Good Practice
• Especially COGP: Dismissal -> Schedule 8 of LRA which deals with misconduct
and incapacity.
Unfair dismissal in terms of the LRA:
• Point of Departure -> S185: Every employee has the right not to be unfairly dismissed
• In all dismissal disputes -> three possible sub-disputes:
1. Employee - as discussed in chapter 3
2. Dismissal - the three that are important in practice:
a. S186(1)(a)
b. S186(1)(b)
c. S186(1)(e)
3. Fairness - question completely separate from existence of a dismissal
a. First question -> automatically unfair? S187 LRA - 9 reasons (cases are heard by the
Labour Court)
, b. Second question -> if not automatically unfair, otherwise fair?
• S188 LRA (operational requirements cases go to Labour Court, misconduct and
incapacity cases go to Bargaining Council / CCMA)
• In most dismissal disputes:
◦ Status as 'employee' and 'dismissal' not in dispute - we go straight to fairness.
• Note: onus to prove 'employee' / 'dismissal' on employee; onus to prove fairness on
employer Jurisdiction to hear unfair fismissal cases in the first instance is divided up
between bargaining councils, CCMA & LC (depending on reason for and nature of
dismissal)
◦ S191(5) LRA
Section 188 LRA:
• Dismissal, if not automatically unfair, may be fair if two requirements are met:
1. Employer must have fair and valid reason related to misconduct / incapacity /
operational requirements (substantive fairness)
a. Misconduct -> individual fault on the side of thee employee (intent / negligence)
b. Incapacity (poor work performance / medical incapacity) -> relates to the individual
employee, but there is no fault on the side of the employee. Has best intentions of
trying to do the job properly.
c. Operational requirements -> also no fault, but external to employee - job disappears
as a result of economic, technological, structural or similar reasons (definition in
S213 of the LRA).
2. Fair procedure must be followed before employer dismisses employee (procedural
fairness) - for each of the 3 reasons, a procedure is prescribed
a. Where do we find the rules?
i. Misconduct -> Code of Good Practice: Dismissal
ii. Incapacity -> Code of Good Practice: Dismissal
iii. Operational Requirements -> S189 / S189A LRA + Code of Good Practice
Substantive and Procedural Fairness
• Dismissal will be unfair if either is missing
• Which is more important?
◦ BOTH NB
• 3 remedies for unfair dismissal:
1. Reinstatement
2. Reemployement
3. Compensation (limited ito S194)
• The word OR stands in between -> you have the option of one or another.
• S193 -> the preferred remedies: reinstatement / reemployment BUT - this preference falls
away if (S193(2)):
◦ Employee does not want it
2
