When is the dismissal of an employee substantively fair?

Jul 4, 2018


It often happens that an employer wants to dismiss an employee, but is not certain whether it would be substantively fair. Substantive fairness means that there is a fair or valid reason to dismiss an employee.
If an employee is dismissed and the reason is automatically unfair, an employer may be ordered to reinstate the employee to his position. In addition, the employer can be ordered to pay compensation equal to a maximum of 24 months’ remuneration calculated at the employee’s rate of remuneration at the time of dismissal.
To ensure that an employee’s dismissal is substantively fair, the following 5 rules should be followed:

  1. Did the employee break a workplace rule or standard of conduct?
  2. Was the rule or standard valid or reasonable?
  3. Was the employee aware, or could reasonably be expected to have been aware of the rule or standard?
  4. Was the rule or standard applied consistently?
  5. Was dismissal an appropriate sanction for the contravention?

If the answer to all 5 questions is ‘yes’ the dismissal of an employee would be considered substantively fair.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

Recent LabourTalk Articles

Parental leave amendments

Parental leave amendments

Under the Basic Conditions of Employment Act, employees who wish to access the revised parental leave benefits of 10 days per annum are now able to do so with full rights. These...

Foreign Employers Cannot Escape SA Labour Law

Foreign Employers Cannot Escape SA Labour Law

When a foreign embassy is situated in South Africa it is in fact, according to law, based on foreign soil. A South African working at a South African-based foreign embassy would,...

Watch what you say to avoid dismissal

Watch what you say to avoid dismissal

The right to freedom of expression can be limited through the balancing of conflicting rights and the potential harm caused in particular circumstances. In this article, we...

LabourTalk Newsletters

Subscribe and receive labour related information

Follow us

 

© 2020 ~ All Rights Reserved