What Constitutes Unfair Dismissal?


Unfair dismissal is an ugly phrase regardless of which party you represent, but it is a common occurrence in the South African workplace. Understanding your rights and responsibilities as either an employee or an employer is the first step to eliminating the occurrence of improper employment practices that rob both individuals and institutions of their dignity.

When an employer fails to renew a contract, ends it without notice, offers it on less favourable terms, disallows allotted maternity leave or forces a worker to end their contract by making working conditions unfavourable, one can be said to have implemented an unfair dismissal. However, there is quite a bit more to this responsibility than meets the eye.

In such cases where the specific needs of the job are being met by the employee, and if they are not yet at the age of retirement; the termination of employment for any of the following reasons counts as an unfair dismissal:

Supporting a strike, protest or union

Workers who have been dismissed for taking part in a strike, protest or union, those who have supported such a notion, and those who have intended to do so, have legitimate grounds to complain of unfair dismissal.

In cases where a protest is interrupting business flow, any worker who refuses to take on the responsibility of a protesting colleague (except where neglecting to do so could pose a hazard), has grounds for claim if their refusal results in a dismissal.

Taking action against an employer

Should a worker’s employment be threatened as a result of them taking action against their employer; either by exercising their rights or by taking part in proceedings, they may make a complaint against them.

Dismissal based on demographic

Dismissal of a worker based on their race, gender, religion, ethnic and social origin, sexual orientation, age, beliefs, political viewpoints, disabilities, language or marital status can be considered unfair.

This creates a responsibility for employers and co-workers to be accepting, open and curious towards cultural and demographic differences. This will help avoid misunderstandings and cultural blind-spots that could lead to an unfair dismissals and disputes.

Inadequate proof

If an employer is unable to provide adequate proof of the dismissed party’s misconduct, or that the requirements placed on them are valid, then it can be classed as an unfair dismissal.

Similarly, if an employer cannot provide proof that they have conducted a fair dismissal procedure, has given a worker warnings and adequate time to rectify their conduct, and has informed them of why their employment is at risk, then it has no weight and can be contested by the affected worker.

Call Michael Krawitz Attorneys

If you would like more information surrounding labour law, unfair labour practices and unfair dismissals, call Michael Krawits & Co. Attorneys for information and advice, or visit our website for more details on our wide array of legal services.

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