'You're fired!' - understanding what constitutes unfair dismissal

Labour law expert Tertius Wessels says every employee has the legal right not to be unfairly dismissed.

Wessels explains that the Labour Relations Act (LRA) recognises three grounds for dismissal.

Read: Company coughs up nearly 5 years' back pay for firing employee with depression

The grounds are based on an employees conduct, an employees capacity and operational requirements (retrenchments).

A dismissal is not unfair if it is based on any of those three grounds and if it is effected in accordance with a fair process.

Read more: Facing retrenchment? Here's how your employer is meant to handle it

All dismissals must meet the standards of substantive and procedural fairness, Wessels advises.

The most common form of dismissal is on the grounds of misconduct.

In many cases of misconduct, dismissal can be given without notice.

In cases where there is a disciplinary hearing, employers must typically give a person at least 48 hours notice to attend.

Also read: Dismissal isn't the default outcome of disciplinary action, a lawyer advises

Wessels explains that disciplinary action should follow a progressive and corrective approach. Dismissal should not be the assumed outcome.

In terms of the Labour Relations Act, every employee has the right not to be unfairly dismissed. However, that does not mean that employees cannot be dismissed by their employers from time to time.

Tertius Wessels, Legal Director at Strata-G Labour Solutions

Capacity refers to whether or not a person is still suitable for a particular position.

Tertius Wessels, Legal Director at Strata-G Labour Solutions

There's a different process that an employer is required to follow when dealing with a particular ground of dismissal.

Tertius Wessels, Legal Director at Strata-G Labour Solutions

Dismissal is not always appropriate for a first offence.

Tertius Wessels, Legal Director at Strata-G Labour Solutions

The law and our courts have for a long time said that employers should follow a progressive and corrective approach when applying discipline to the workplace.

Tertius Wessels, Legal Director at Strata-G Labour Solutions

Wessels shared his expert legal advice and helped callers with their various cases and scenarios.

Listen to the discussion with stand-in host Sizwe Mpofu-Walsh:


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