Unfair Dismissal | Unfair Labour Practice | Kontak Recruitment

Unfair dismissal and unfair labour practice

Understanding what a dismissal is, what unfair labour practice is, when a dismissal is considered automatically unfair, when a dismissal is fair and what substantive and procedural fairness is during dismissal.

What is an unfair dismissal?

The meaning of an unfair dismissal and unfair labour practice according to Chapter 8 Section 185 of the Labour Relations Act is that every employee has the right not to be:

• Unfairly dismissed
• Subjected to unfair labour practices

What is a dismissal?

A dismissal, according to Section 196 of the Labour Relations Act, means that:

• An employer has terminated a contract of employment either with or without notice
• An employee reasonable expected that the employer would renew a fixed-term contract of employment on the same of similar terms, but the employer offered to renew the fixed-term contract on less favourable terms or did not renew the fixed term contract at all.
• An employer refused to allowed an employee who was on maternity leave to resume work after she:
  • Took maternity leave in terms of any law, collective agreement of according to her contract of employment
  • The employee was absent from work for up to four (4) weeks before the expected date of birth, and up to eight (8) weeks after the actual date of the birth of her child.
• An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of the employees, but refused to re-employ another employee.
• An employee has terminated a contract of employment with or without notice because the employer made the continued employment intolerable for the employee.
• An employee's contract of employment is terminated with or without notice, because a new employer, after the transfer of a business, provided the employee with conditions or circumstances at work that are substantially less favourable than those which were provided by the old employer.

An employer has a few options when dismissing an employee:

The employer can:

1. Give the worker or employee notice

This means that the employer tells the employee or worker to leave work after a certain period of time. The worker or employee must get wages/salary for the time he or she has worked, plus any leave pay (if leave is due). In this instance the worker or employee will not get paid out notice pay.

2.  Give the worker/employee notice pay (Also known as payment in lieu of notice)

This means that the worker or employee leaves the employment immediately and is paid out the value of the notice period instead of having to work the duration of the notice period. The notice pay must be for as long as the notice time required by law. The payment must include the value of payment in kind. The payment would include the wages/salary for the hours/time worked, plus any leave pay ( if accrued), plus payment in lieu of notice, or payment for accommodation if applicable.

3. Retrench the worker/employee

The employer must pay the worker severance pay of at least 1 week's remuneration for every full year that the worker/employee has worked for the employer. The payment must include the value of payment in kind. The employee must be paid wages/salaries for the hours worked, plus any leave pay, plus notice or payment in lieu of notice, plus severance pay.

What is unfair labour practice?

Unfair labour practice, according to Section 186 as amended, means an unfair act or omission that arises between the employer and the employee involving one or more of the following:

• Unfair conduct relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benefits to an employee.
• Unfair suspension of other unfair disciplinary action short of dismissal of an employee
• A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement
• An occupational detriment, other than dismissal in contravention of the Protected Disclosures Act No 26. of 2000, on account of the employee having made a protected disclosure in that act.

When is a dismissal considered automatically unfair?

In terms of Section 187 of the Labour Relations Act, a dismissal is regarded as automatically unfair if the employer, when dismissing an employee, states that the reason for dismissal is:

• That the employee participated in or supported or indicated an intention to participate in or support a strike or protest action that complies with the provision of Chapter 4 of the Labour Relations Act. That the employee refused or indicated an intention to refuse to do any work normally done by an employee who at the time was taking part in a strike that complies with the provision of Chapter 4 or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health.
• To compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee.
• That the employee took action, or indicated an intention to take action, against the employer as allowed by the act.
• The employee's pregnancy, intended pregnancy or any reason related to her pregnancy.
• That the employer unfairly discriminated against an employee, directly or indirectly or any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion,  conscience, belief, political opinion, culture, language, marital status or family responsibility.
• A transfer, or a reason related to a transfer according to Section 197 (Transfer of a contract of employment) or Section 197 (A Transfer of a contract of employment in circumstance of insolvency)
• A contravention of the Protected Disclosures Act by the employer, on account of an employee having made a protected disclosure defined in the act.

When is a dismissal fair?

A fair dismissal occurs when the reason for the dismissal is based on an inherent requirement for the job.

The Fairness of a dismissal is decided in 2 ways:

1. Substantive Fairness

Substantive fairness means was there a fair reason to dismiss the employee and was the dismissal the appropriate action under the circumstances.

Fair reasons for dismissal could include:

Misconduct of the employee, incapacity of the employee and retrenchment or redundancy.

An important point to remember is that even if the worker or employee is at fault, the employer must still pay the right salary or wages, leave pay and notice pay.

2. Procedural Fairness

Procedural fairness means was there a fair procedure before the worker or employee was dismissed.

The worker or employee must always have a fair hearing before being dismissed. The employee must be allowed the chance to give his or her side of the story before the employer decides on a dismissal.

According to Section 188 of the Labour Relations Act a dismissal is unfair if the employer fails to prove that:

The reason for the dismissal is a fair reason and is related to:

• the employee's conduct or capacity
• the employer's operations requirements
• the dismissal was effected in accordance with a fair procedure

When dismissing a worker/employee the dismissal must be both substantively and procedurally fair. The reason for the dismissal must be fair (substantive fairness), the reason for dismissal of the employee must be fair and the dismissal must prove to be the appropriate course of action under the circumstances. Additionally, the procedure followed for dismissal of the worker/employee must be fair. The employee must be allowed the opportunity to give his or her account before the employer is allowed to decide on a dismissal.