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Why Can't I Just Fire Someone?



The Labour Relations and Basic Conditions of Employment Acts prescribe the order for dismissing an employee and what reasons are considered valid for such dismissal. Authors and bloggers explore this topic against almost all possible circumstances that an employee can potentially be faced with. Despite this some employers still consider it fair to dismiss employees “willy-nilly”.

Before listing the circumstance under which an employee can be legally dismissed perhaps I should draw your attention to the results of unfair dismissals:

Compensation

The worst way to have to part with money is through your own wrongdoing and this is exactly how it feels to have to compensate an ex-employee for unfair dismissal. While the employee will continue to earn a monthly salary, you do not get to demand the benefit of their service.

The amount of compensation due to an employee depends on the circumstances surrounding the dismissal, particularly whether the dismissal is classified as automatically unfair or not. These classifications can be found in the Labour Relations Act. Contact us to find out which circumstances fall under the classification of automatically unfair dismissal.

Where the dismissal is automatically unfair an employer can be ordered to compensate an employee up to 24 months’ remuneration. Where a dismissal is found to be procedurally or substantively unfair, the compensation can be up to 12 months.

Reinstatement

An employee who was unfairly dismissed can be ordered to return to work. This can be ordered over and above the order for compensation. The discretion lies with the adjudicator of the matter and such order can be accompanied by an order that all benefits due to the employee be back dated to the date of the unfair dismissal.

Now that we have discussed why an employer can’t just fire someone, here is a summary of the only reasons allowed for a dismissal to be fair:

  • Misconduct

  • Incapacity

  • Operational Requirements

All the above have their individually set procedures, therefore one still needs to be careful in dismissing an employee based on the above reasons. It is the employer’s duty to show that the dismissal was fair and that the correct process was followed.

We do not recommend that employers handle dispute resolution themselves therefore should you be faced with a dispute or a potential labour dispute contact Myers Attorneys on 011 346 2422 or email at reception@myersattorneys.co.za

#SouthAfricanLabourLaw #LabourLaw #Compliance #retrenchment #PoorPerformance

Written By N. Gxilishe.

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