The Labour Relations Act provides guidelines for when a dismissal can be considered fair. Here are the five fair reasons for dismissal according to the CCMA:
1. Misconduct
Misconduct occurs when an employee engages in behavior that violates workplace rules, codes of conduct, or ethical standards. Common examples of misconduct that may lead to dismissal include:
- Dishonesty: Lying, fraud, or stealing from the employer.
- Breaching workplace protocols: Violating health and safety regulations, such as ignoring Covid-19 safety protocols.
- Carrying weapons during a strike: Engaging in violent or threatening actions that could harm others.
For dismissal to be fair, the employer must prove that the misconduct occurred and that it is serious enough to justify termination. Proper disciplinary procedures must also be followed, including a hearing and an opportunity for the employee to defend themselves.
2. Incapacity
Incapacity refers to an employee’s inability to perform their duties due to poor work performance, ill health, or incompatibility with the workplace. This category includes situations where:
- Poor work performance: An employee consistently fails to meet the required standards of their job despite receiving sufficient training and support.
- Ill health: Chronic illness or disability may make it impossible for an employee to fulfill their responsibilities.
- Incompatibility: A situation where an employee is unable to work harmoniously with colleagues or cannot adapt to the work environment.
Before dismissing an employee on the grounds of incapacity, the employer must show that they provided support, such as training or reasonable adjustments, to help the employee improve.
3. Redundancy
Redundancy occurs when an employee’s job is no longer needed due to changes in the business. This can happen for various reasons, including:
- Business closure: If the employer closes the business entirely, employees may be dismissed as their positions are no longer necessary.
- Workplace closure: When a specific workplace branch or location is shut down, leading to job losses.
- Reduction in demand for work: If a business decides to reduce or eliminate certain operations or services, some roles may become redundant.
For redundancy to be fair, the employer must prove that the dismissal is due to genuine operational reasons and that all alternatives, such as reassigning employees or retraining, were considered.
4. Statutory Illegality
Statutory illegality refers to situations where continuing to employ an individual would violate the law. This can include:
- Licensing issues: If an employee is required to hold a specific license or qualification to perform their duties, and they lose this, the employer may have no choice but to dismiss them.
- Immigration status: If an employee is working without the proper legal authorization (e.g., a work permit), continuing the employment would be illegal.
Dismissal based on statutory illegality requires the employer to prove that continuing employment would breach the law, making the termination a legal necessity.
5. Operational Requirements
Operational requirements are one of the most common grounds for dismissal, particularly in large organizations. This reason allows an employer to dismiss employees when they need to make changes to improve business efficiency. Common examples include:
- Cost-cutting measures: Downsizing to reduce operating expenses.
- Reorganization: Restructuring the workforce to meet changing market conditions.
- Change in business direction: Shifting focus or altering operations to better align with industry trends.
To ensure fairness, the employer must demonstrate that the dismissal is based on the genuine needs of the business, and alternatives to dismissal, such as redeployment or retraining, should be explored.