1. Unfair Dismissals (Practice Note 8 of 2016)
1. The Labour Relations Act 66 of 1995 provides that “every employee has the right
not to be unfairly dismissed”1
.
2. The meaning of dismissal is well canvassed in section 1862 and reads as follows:
(1) "Dismissal" means that-
(a) an employer has terminated a contract of employment with or without notice;
(b) 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;
(c) an employer refused to allow an employee to resume work after she-
(i) took maternity leave in terms of any law, collective agreement or her contract of
employment; or
(ii) was absent from work for up to four weeks before the expected date, and up to eight
weeks after the actual date, of the birth of her child;
(d) 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
(e) an employee terminated a contract of employment with or without notice because the
employer made continued employment intolerable for the employee.
(f) an employee terminated a contract of employment with or without notice because the
new employer, after a transfer in terms of section 197 or section 197A, provided the
employee with conditions or circumstances at work that are substantially less favourable
to the employee than those provided by the old employer.
1 See section 185 (a) of the Labour Relations Act 66 of 1995
2 The Labour Relations Act 66 of 1995

2. 3. Other categories of dismissals are automatically unfair dismissals which are as
follows3:
3.1. Exercising any of the rights given by the Labour Relations Act 66 of 1995
or participating in proceedings in terms of the Act;
3.2. Taking part in lawful union activities;
3.3. Taking part in a legal strike or other industrial action or protest action;
3.4. Refusing to do the work of someone who was on strike
3.5. Being pregnant, or any reason related to pregnancy
3.6. Refusing to accept a change in working conditions
3.7. reasons that are due to arbitrary discrimination (except that an employer
may retire someone who has reached the normal or agreed retirement
age, or if the reason is based on an inherent requirement of the job, for
example being able to speak a certain language in order to do the job
properly);
3.8. A reason related to a transfer following a merger of the company with
another organisation
3.9. Where the employee is dismissed following a disclosure made by him in
terms of the “Protected Disclosures Act4,”
4. Other unfair dismissals are envisaged in section 188 of the LRA Act 66 of 1995
and reads as follows:
188. Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee's conduct or capacity; or
(ii) based on the employer's operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.
(2) Any person considering whether or not the reason for dismissal is a fair reason or
whether or not the dismissal was effected in accordance with a fair procedure must take
into account any relevant code of good practice issued in terms of this Act.
3 See section 187 of the Labour Relations Act 66 of 1995
4 Act 26 of 2000

3. 5. Section 189 of the LRA sits alongside a cluster of statutory rights which give
practical meaning to the right not to be unfairly dismissed which is contained in
section 185 of the LRA.
6. Although crafted in procedural terms, the object of section 189 is substantive.
7. For a thorough discussion on unfair dismissals, one needs to examine first as to
when is a dismissal fair.
8. For a dismissal to be fair, regard must had to:
8.1. Substantive fairness;
8.2. Procedural fairness;
9. For substantive fairness to exist, a valid reason or ground for the termination of
an employee’s employment must always exist5.
10.The employer must have a proper and fair reason for dismissing the worker.
11.A “fair” reason can be:
11.1. misconduct (the worker has done something seriously wrong and can be
blamed for the misconduct);
5 Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 12 BLLR 1097 (CC).

4. 11.2. incapacity (the worker does not do the job properly, or the worker is unable to
do the job due to illness or disability);
11.3. retrenchment or redundancy (the employer is cutting down on staff or
restructuring the work and work of a particular kind has changed);
12.In order to dismiss substantively fairly, an employer must not only have a valid
reason, but must prove such reason.
13.Section 192 of the LRA provides that the employer bears the onus of proving, on
a balance of probabilities, that the dismissal was fair, both substantively and
procedurally.
14.Furthermore, substantive fairness takes into consideration the following aspects:
14.1. Did the employee break a rule of conduct in the workplace?
14.2. Was the rule valid and reasonable?
14.3. Did the employee know about the rule or should have known about the rule?
14.4. Has the employer has been consistent in applying the rule?
14.5. Is dismissal the appropriate step to take against the employee for breaking
the rule rather than a less severe penalty like a final written warning or
suspension?
15.The penalty must fit the crime and there must be consistency in the application of
the same punishment for the same form and/or similar crime.

5. 16.Substantive fairness entails a closer examination of the grounds on which the
employer decided to dismiss.
17.A dismissal on a first offence is seldom considered to be substantively fair,
unless the matter is of such gravity and seriousness, that it is impossible for the
employment relationship to continue6.
18.In brief substantive fairness must exhibit that when the employer decides to
dismiss, it must be able to assert the following:
18.1. There was a valid reason for dismissing;
18.2. The employer must be able to prove such reason;
18.3. Such reason must go to the core of the employment relationship
19.The notion of procedural fairness has been incorporated into South African unfair
dismissal law, which has been influenced by English Law, the International
Labour Organisation and the rules of natural justice derived from administrative
law.
20.In simple terms, each of the three grounds for termination (conduct, capacity and
operational requirements) requires an allied fair procedure to be followed before
dismissal takes place.
6 Instances might be sexual harassment, fraud, assault, theft, drunkenness on duty, and so on. By the
same token, a dismissal for a relatively minor offence such as absence without authority, or habitual late-
coming, or a minor insubordination, would also be found to be unfair, and probably re-instatement would
be awarded. See also Unitrans Zululand (Pty) Ltd v Cebekhulu (2003) 7 BLLR (LAC)

6. 21.Procedural fairness relates to the procedure followed in dismissing employee.
22.The worker must always have a fair hearing before being dismissed.
23. In other words, the worker must always get a chance to give his or her side of
the story before the employer decides on dismissal (audi alteram partem rule).
24.In Discovery Health Ltd v CCMA & others [2008] 7 BLLR (LC) the court held that
foreign nationals working without work permits are “employees” as defined by the
LRA and may bring actions for unfair dismissals under the LRA.
25.The Immigration Act 13 of 2002 prohibits employing foreigners without a work
visa and the unfortunate consequences for the employer are to be in
contravention of the Immigration Act.
26.This case examines the protection of the right of employees to fair labour
practices even when employed without a valid work visa and/or permit.
27.In IBM South Africa (Pty) Ltd v Commission for Conciliation, Meditation and
Arbitration (CCMA) and others [2016] ZALCJHB 151 (19 April 2016) Third
Respondent was dismissed because of incompatibility. She also found that she
was not presented with evidence to prove that the Third Respondent was made

7. aware of her incompatibility or that the Third Respondent did not work well with
her colleagues or caused disharmony in the workplace.
28.After consideration the court believed that a compensation award is appropriate
to address Applicant’s admitted procedural shortcomings in attending to Third
Respondent’s dismissal.
29.In summary, one has to prove that they were dismissed, the dismissal was harsh,
unjust and unreasonable.
MT KUFA
LLB, LLM (UNISA)
Advocate of the High Court of South Africa)
Pretoria
26 June 2016