Unfair Dismissal

What Does Dismissal Mean?

an employer has terminated a contract of employment with or without notice;
an employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
an employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or contract of employment;
an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee;
an employee terminated a contract with or without notice because the employer, after a transfer in terms of section 197 or 197A, provided the employee with conditions of service that are substantially less favourable to the employee than those provided by the old employer.

What Does Unfair Dismissal Mean?

An unfair dismissal is when your employer is in repudiation of contract; an example will be if you are fired without giving you notice. In an employment situation, you have to know your rights and read through your contract properly, as well as brush up on your labour law knowledge every now and then so you know what’s going on. You should know a little more than just the definition of statements like unfair dismissal.

Unfair dismissal embodies one of the main elements of modern labour law, providing employees with practical solutions to workplace issues. The law concerning unfair dismissal has worked to place the steps of fair procedure at the forefront of an employer’s mind when contemplating disciplinary procedures or the dismissal of an employee.

There are numerous situations where past employees have been unfairly dismissed but due to their lack of knowledge about the current labour law, have no idea that they have a legal standing to voice these concerns. The act of unfair dismissal covers a wide range of inappropriate activities and behaviour by employers. A detailed knowledge of the labour law and the situation relating to unfair dismissal is required to build a rational and well-meaning case against those accused of unfair dismissal; otherwise, the chances of successfully bringing an unfair dismissal action against a current or former employer is limited.

Automatically Unfair Reasons for Dismissal

Certain reasons for automatically unfair dismissal are considered unfair, regardless of the circumstances. An employer must ensure that any termination of employment follows fair procedures and aligns with labour laws. If an employee is dismissed for any of the reasons below, they may have grounds to make a claim for an unfair dismissal claim at an employment tribunal.

A dismissal is unfair if it is based on:

If an employer dismisses an employee for asserting a statutory right, such as taking maternity leave, sick leave, or joining a trade union, the dismissal is automatically unfair.
Reporting misconduct or illegal activity within the workplace should not lead to dismissal. Employees have the right to raise concerns about workplace safety, fraud, or any unlawful practice without fear of losing their jobs.
Dismissing an employee based on race, gender, disability, age, religion, pregnancy, or any other protected characteristic under labour law is not a fair reason for termination.
Employees have the right to refuse work that poses a serious risk to their health and safety. Termination under these circumstances is automatically unfair.
While certain limitations apply, dismissing employees for taking part in lawful strikes or workplace protests may be deemed automatically unfair.

Claim for Unfair Dismissal

If you have been dismissed and believe it was unfair, you have the right to challenge the decision. Cape Labour Law can assist you in making a claim and ensuring that your rights are protected.

How to Claim for Unfair Dismissal

To claim for unfair dismissal, an employee must:

Refer the dispute to the CCMA within 30 days of dismissal.
Show that the employer fails to prove that the dismissal was fair, both procedurally and substantively.
Participate in conciliation, where a resolution may be reached through mediation.
Proceed to arbitration if conciliation fails, where a commissioner will decide the case.

Possible Outcomes

If a claim for unfair dismissal is successful, the employer may be required to:

Reinstate the employee with the same terms and conditions.
Re-employ the employee to a different position.

Contact Us

Cape Labour Law ensures that employees receive professional guidance and representation when making a claim. Our team provides expert assistance throughout the process, from disciplinary action reviews to representation at the CCMA.

If you believe your dismissal is unfair, contact Cape Labour Law for legal assistance today.