Unfair dismissal examples

 

Here are some examples of unfair dismissal in South Africa, categorized by whether they fall under substantive unfairness (reason for dismissal) or procedural unfairness (dismissal process):

 

Substantive Unfairness (Unfair Reason for Dismissal):

 

• 🟧 Dismissal based on discrimination: This includes being fired for reasons like race, gender, age, religion, disability, sexual orientation, or marital status.

 

• 🟧 Dismissal for exercising employee rights: An employer cannot fire you for taking sick leave, joining a trade union, participating in a legal strike, or raising workplace safety concerns.

 

• 🟧 Victimisation: This occurs if you’re dismissed for making a complaint of unfair treatment or discrimination against your employer.

 

• 🟧 Disclosure of wrongdoing: If you’re fired for disclosing illegal activity or wrongdoing within the company, it’s likely unfair dismissal.

 

• 🟧 Refusal to dismiss unfairly: An employer cannot dismiss you for refusing to dismiss another employee unfairly.

 

• 🟧 Redundancy without proper procedure: If the company undergoes restructuring and retrenchments, but they fail to follow proper selection criteria or procedures outlined in the LRA or company policy, your dismissal could be substantively unfair.

 

• 🟧 Dismissal due to fabricated reasons: If the employer invents reasons for dismissal that can’t be substantiated, it can be seen as unfair.

 

 

Procedural Unfairness (Unfair Dismissal Process):

 

• 📌 Lack of proper notice: The employer must provide you with reasonable written notice of termination according to your employment contract or the basic conditions of employment (BCEA) . Dismissal without proper notice would be procedurally unfair.

 

• 📌 Not being given a fair opportunity to defend yourself: If you’re subjected to a disciplinary hearing before dismissal, you have the right to a fair hearing. This includes the right to be represented, present evidence in your defense, and cross-examine witnesses**. If these rights are denied, it can be procedurally unfair.

 

• 📌 Not following the company’s disciplinary procedures: The company must follow its own established disciplinary procedures outlined in the employment contract or company policy. Deviating from these procedures can be unfair.

 

• 📌 Dismissal without a valid reason: Even if there was a disciplinary hearing, if they fail to provide a valid reason for dismissal based on the company’s policies or the LRA, it could be procedurally unfair.

 

 

Remember:

 

☑️ These are just a few examples, and unfair dismissal can occur in various situations.

☑️ If you believe you’ve been unfairly dismissed, it’s crucial to gather evidence and consult with the Department of Labour  or a lawyer specializing in labour law to understand your rights and the best course of action.