Two Requirements: Fair Reason and Fair Procedure
South African labour law requires that every dismissal must be both substantively fair (there must be a valid reason) and procedurally fair (the correct process must be followed). If either requirement is not met, the dismissal may be found unfair at the CCMA — regardless of how justified you believe it was. Compensation awards of up to 12 months' remuneration can follow an unfair dismissal finding.
Valid Reasons for Dismissal
- Misconduct — theft, dishonesty, violence, insubordination, repeated absenteeism
- Incapacity — poor work performance or inability to perform due to ill-health
- Operational requirements — genuine economic or structural reasons requiring retrenchment
Personal dislike, a desire to replace the worker with someone cheaper, or convenience are not valid reasons for dismissal.
The Disciplinary Hearing
For misconduct dismissal, you must hold a disciplinary hearing before dismissing. This must: give the employee advance written notice of the charges and the date of the hearing, allow them to state their case and respond to allegations, and communicate the outcome in writing. The worker is entitled to be assisted by a fellow employee or trade union representative.
Notice Period on Dismissal
When dismissal follows a fair process, you must give required notice or pay in lieu of notice: one week if employed six months or less, four weeks if employed longer than six months. Summary dismissal (without notice) is only appropriate for serious misconduct such as theft or violence — and a fair hearing must still precede it.
Dismissal During Probation
Many domestic employers believe that dismissal during a probationary period can be handled more informally than dismissal after the probationary period ends. This is a dangerous assumption. While South African law does allow for some flexibility in how poor performance is assessed during probation, the basic requirements of substantive and procedural fairness still apply. A domestic worker dismissed during probation for alleged poor performance or misconduct can still refer a dispute to the CCMA. The correct approach during probation is to provide regular feedback, give the worker a genuine opportunity to improve, and follow a fair process before any dismissal is effected.
Automatically Unfair Dismissal — A Higher Standard
Certain categories of dismissal are treated as automatically unfair under the Labour Relations Act, regardless of whether the employer followed a fair procedure. These include dismissal because the worker is pregnant or has taken maternity leave, dismissal because the worker has asserted a legal right (such as claiming UIF benefits or complaining about non-compliance to the Department of Labour), dismissal because the worker participated in legitimate trade union activities, and dismissal based on discriminatory grounds. Automatically unfair dismissal attracts the highest compensation awards under the LRA.
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