Automatically unfair dismissal
In South Africa, automatically unfair dismissal is a specific category of dismissal where the reason for termination is so serious that the dismissal is automatically considered unfair by law. This means the employer doesn’t have a defense and the focus is not on the fairness of the dismissal process itself (procedural fairness) but rather the reason for dismissal (substantive unfairness).
Here’s a breakdown of key points regarding automatically unfair dismissal:
Reasons for Automatically Unfair Dismissal
The Labour Relations Act (LRA) 66 of 1995 outlines several reasons that constitute automatically unfair dismissal. Some prominent examples include:
- 📌 Dismissal related to exercising employee rights: This includes being fired for taking sick leave, joining a trade union, participating in a protected strike, or raising workplace safety concerns.
- 📌 Discrimination: Dismissal based on a protected characteristic like race, gender, age, religion, disability, sexual orientation, or marital status is automatically unfair.
- 📌 Victimisation: Punishing an employee for making a complaint of unfair treatment or discrimination falls under automatic unfair dismissal.
- 📌 Disclosure of information: Dismissing an employee for disclosing wrongdoing or illegal activity within the company is automatically unfair.
- 📌 Refusal to dismiss unfairly: An employer cannot fire an employee for refusing to dismiss another employee unfairly.
Benefits for Employees
- ✅ Easier to Claim: Since the reason for dismissal is the focus, employees don’t necessarily need to prove procedural unfairness. This simplifies the case compared to a regular unfair dismissal claim.
- ✅ Shifting Burden of Proof: The burden of proof often shifts to the employer. They need to justify the dismissal wasn’t linked to any of the reasons constituting automatic unfair dismissal.
How to Claim Automatically Unfair Dismissal
- 📌 Gather Evidence: Collect documentation supporting your claim, such as proof of your protected characteristic (if discrimination is alleged), communication regarding union activity (if applicable), or evidence of disclosure of wrongdoing.
- 📌 Department of Labour (DoL): File a complaint with the DoL within 30 days of the dismissal. They can attempt mediation or refer your case to the CCMA (Conciliation, Mediation and Arbitration Commission).
- 📌CCMA: The CCMA will hear your case and determine if the dismissal was automatically unfair.
- 📌 Legal Advice: Consulting a lawyer specializing in labour law is recommended for complex cases or additional guidance throughout the process.
Take Notice
- ⚠️ Understanding the LRA: Familiarize yourself with the specific reasons listed in the Act that constitute automatically unfair dismissal.
- ⚠️ Time Limits: Act promptly by filing a complaint within the 30-day window.
- ⚠️ Seeking Help: The DoL and legal professionals can advise you on your rights and the best course of action.
By understanding automatically unfair dismissal and the process involved in claiming it, you can be better equipped to protect your rights as an employee in South Africa.
