According to section 185 of the Labour Relations Act 66 of 1995, “every employee has the right not to be unfairly dismissed and be subjected to an unfair labour practice”. As a result, it is illegal in South Africa for an employer to terminate an employee’s employment contract without a fair reason and without following a fair procedure.

What is dismissal?

Dismissal takes place when an employer discharges an employee from employment or services with or without notice. Dismissals can happen for a number of reasons, including when:

  • An employer fails to renew the employee’s contract as per their initial agreement. This type of unfair dismissal only takes place when there is an existing agreement which assures an employee that when the existing contract comes to an end, he or she will be re-employed. The agreement can either be written or verbal.
  • An employee was not allowed to come back to work after taking a legal maternity leave. According to section 25(1) of the Basic Conditions of Employment Act 75 of 1997, “An employee is entitled to at least four consecutive months’ maternity leave”. This means that women are entitled to the full four months of maternity leave, and it constitutes an unfair dismissal when employers terminate their employment contracts during maternity leave.
  • The employer made continued employment unbearable, and the employee had no choice but to resign. This is referred to in section 186(1)(e) of the Labour Relations Act 66 of 1995 and it automatically constitutes an unfair dismissal.

However, it is important to note that dismissals can either be fair or unfair. Dismissals are said to be fair when an employee has been dismissed for justifiable reasons. For example, an employee has reached the age of retirement, or the employee is unable to reach specific needs of his or her job. Inversely, dismissals are said to be unfair when an employee has been dismissed for unjustifiable reasons.  For example, where an employee has been dismissed for taking part in a strike or protest, the employee is pregnant, the employee is discriminated against based on gender, religion, race etc, or where an employer is unable to prove that the dismissal is fair.

What is an unfair labour practice

Section 186(2) of the Labour Relations Act provides that an unfair labour practice “is any unfair act or omission by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”. There are several examples which relates to unfair labour practices, such as:

  • section 4(8) of the National Minimum Wage Act 9 of 2018 provides that “it is an unfair labour practice for an employer to unilaterally alter wages, hours of work or other conditions of employment in connection with the implementation of the National minimum wage and section 191,193, 194(4) and 195 of the Labour Relations Act apply, unless the context indicates otherwise”.
  • Employer unfairly suspends or takes unfair disciplinary action against the employee. Suspensions or disciplinary actions can only be said to be fair when an employer follows a fair procedure.

What to do when you face an unfair dismissal or unfair labour practices  

When an employee knows or feels like he or she has been unfairly dismissed or is facing unfair labour practices, he or she can refer the dispute for conciliation. This can be done in writing to the Commission for the Conciliation, Meditation and Arbitration (CCMA) or a statutory or bargaining council. When an employer has been dismissed, he or she must refer the matter within 30 days of dismissal. If the employee is facing unfair labour practices, he or she must refer the matter within 90 days of the unfair labour action. However, when an employee shows a good cause, he or she can still refer the matter after the above-mentioned periods have lapsed.