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Dismissal of employees: complicated by definitions

Peter McDermott

When it comes to dismissal, the point of departure in the Labour Relations Act No. 66 of 1995 (LRA) appears to be straightforward: "Every employee has the right not to be unfairly dismissed" (section 185). On the face of it, it does indeed look straightforward but when the various definitions applicable to the rule are taken into account, it becomes more complex. Before the above-mentioned section 185 principle even becomes applicable, it's necessary to establish if the person concerned falls within the definition of the term 'employee' as defined in section 213 of the LRA. Why?

Only when it's been determined you're dealing with an employee can you ask if the employee has in fact been dismissed (the term 'dismissal' is defined in section 186 of the LRA).

Two questions have to be asked to establish if a dismissal was fair:

  1. Was the person concerned an employee as defined in section 213 of the LRA?
  2. Can the termination of service be classified as one or more of the actions set out in section 186 of the LRA?

Only when both questions have been answered in the affirmative can you try to establish if the dismissal was fair.

Section 188 of the LRA sets out the basic rules for all dismissals that aren't automatically unfair and incorporates two basic principles:

  1. Substantive fairness (the reason for the dismissal), and
  2. Procedural fairness (the procedure by which the employee was dismissed).

Only if the dismissal passes both the substantive and procedural hurdles will it be considered a fair dismissal.

Section 188 also lists the three main reasons for dismissal:

  1. The first and most obvious is the conduct of the employee, e.g. negligence, dishonesty and insubordination. 'Conduct' relates to an employee's behaviour.
  2. The second relates to the capacity of the employee, e.g. poor work performance or ill health. 'Capacity' refers to the employee's ability to do his or her work.
  3. The third relates not to the employee's circumstances but to the company's circumstances, i.e. operational requirements of the company. If a company dismisses one of their employees because of operational reasons, this is termed a 'no-fault' dismissal as the employee is dismissed because of requirements that the organisation has rather than the ability of the employee. An example of this type of dismissal is a retrenchment.

To manage (and therefore also terminate) an employment relationship effectively, management and employees must be committed to all relevant and prescribed procedures. If industrial relations are managed positively, relationships between the parties will be more harmonious.

Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions