UNDERSTANDING WHETHER A DISMISSAL IS FAIR OR UNFAIR

What does “unfair” mean from a Labour Law perspective

The legal definition of unfair connotes a very particular meaning for Labour Law Practitioners, which connotation differs greatly form the ordinary dictionary or societal usage of the word.

One can assume that the nature of the word “unfair” in Labour Law is somewhat subjective, which may very well have been the intention of the legislature to do so. Naturally, every individual circumstance has its own facts and merits which may be deemed to be unfair, and a catch all definition would thus shackle the ability and discretion of a presiding officer, commissioner or arbitrator in delivering a just and equitable ruling or finding. An objective definition of the word unfair would create a rigid and inflexible circumstance as one needs to pay attention to the facts and particularity of the case at hand.

Thus, it is up to the Judges and Arbitrators discretion to make a distinction as to whether an employee has been unfairly dismissed or not. [1]

Definition in terms of Labour Relations Act 66 of 1995:

There is no definition of the word “unfair” in the aforesaid Act, therefore one must look at preceding cases and determine the pattern of decisions made by the Courts.

One can gather that based on previous decisions made by our Courts that “unfair dismissal” by its very nature is the act of an employer which cannot be justified on its own merits, whether procedurally, substantively or both. The employer shall be given a hearing (usually at the CCMA) to justify why the decision to dismiss was made, it is at this forum that the employer needs to adequately and reasonably justify why the employee was dismissed. [2]

Consequently, an employer cannot act arbitrary and must have a rational basis for the dismissal of an employee. The decision of the employer to dismiss must have been necessary, balanced, appropriate in the circumstance.

Considering the above, it appears that the subjective term of “unfair” must be fortified by the objective facts and circumstances.

When is a dismissal fair?

The Labour Relations Act has a Code of Good Practice for Dismissals that employers must follow.

The ‘fairness’ of a dismissal is decided in two ways:

1. Substantive fairness:

The employer needs to ask whether there was a ‘fair’ reason to dismiss the employee and whether the dismissal was appropriate under the circumstances.

The employer must have a proper and fair reason for dismissing the employee.

A ‘fair’ reason can be one of these:

• misconduct (the employee has done something seriously wrong and can be blamed for the misconduct.)
• incapacity (the employee does not do the job properly, or the employee is unable to do the job due to illness or disability)
• retrenchment or redundancy (the employer is cutting down on staff or restructuring the work and work of a particular kind has changed)[3]

2. Procedural fairness 

The employer needs to ask whether there was a fair procedure before the employee was dismissed.

The employee must always have a fair hearing before being dismissed. In other words, the employee must always have the opportunity to give his or her side of the story before the employer decides on dismissal. The employee is allowed to refer the anticipated dismissal to the CCMA for conciliation.[4]

Employers are cautioned to be weary when dismissing employees and ensure that the decisions made is one that is substantively and procedurally fair, and that the there exists a rational, appropriate and justifiable connection between the impugned conduct and the decision to dismiss.

[1] Unfair Dismissal And Labour Law: The Thorny Issue Of Determining What Is Unfair

by Ivan Israelstram | Jun 22, 2018 | CCMA, Labour Law, Labour Relations Act, Unfair Dismissal | https://www.labourlawadvice.co.za/702-podcast-on-unfair-dismissal-in-labour-relation-act-south-africa/

[2] Unfair Dismissal And Labour Law: The Thorny Issue Of Determining What Is Unfair

by Ivan Israelstram | Jun 22, 2018 | CCMA, Labour Law, Labour Relations Act, Unfair Dismissal | https://www.labourlawadvice.co.za/702-podcast-on-unfair-dismissal-in-labour-relation-act-south-africa/

[3] The South African Labour guide | https://www.labourguide.co.za/discipline-dismissal/712-unfair-dismissals

[4] The South African Labour guide | https://www.labourguide.co.za/discipline-dismissal/712-unfair-dismissals

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)