Labour Relations Act, 1995 (Act No. 66 of 1995)

Notices

Bargaining Council for the Food Retail, Restaurant, Catering and Allied Trades

Extension to Non-parties of the Main Collective Agreement

Annexures

Annexure F : Schedule 8 - Code of Good Practice : Dismissal

2. Fair reasons for dismissal

Purchase

(1)

A dismissal is unfair if it is not affected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the guidelines set out below.

(2)	The Act recognises three grounds on which termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer's business.

(3)

The Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.

(4)

In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was affected in accordance with a fair procedure, the dismissal is unfair.