Dismissal under the LRA

Wednesday, January 6, 2021

"Every employee has the right not to be unfairly dismissed" - S185 of the LRA

The Act does not confer on employees a right not to be dismissed, but only not to be unfairly dismissed.

Permissible reasons for dismissal are set out in S188 of the LRA:

1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove -   

a) that the reason for the dismissal is a fair reason - 

    (i) related to the employee's conduct or capacity; or 

    (ii) based on the employer's operational requirements; and     

b) that the dismissal was effected in accordance with a fair procedure 

If the reason for the dismissal cannot be brought under one of those headings, it is arbitrary and unjustifiable.

No dismissal can be for a valid reason unless it is related to the employee's conduct or capacity, or the employer's operational rquirements. 'Conduct' is behaviourfor which the employee could have avoided. 'Capacity' refers to employees' ability to perform their work adequately. By 'operational requirements' are meant those based on the economic, technological, structural or similar needs of the employer.

The Act does not permit an employer to dismiss for any reason related to the employee's conduct or capacity, or to the employer's operational requirements; the reason must be fair. A fair reason means one that is justifiable.

When deciding whether dismissal is for a fair reason a judgement must be made by the person deciding on the question and it is to be made in relation to the facts , the guidelines set by the Labour and Labour Appeal Courts and any relevant code of good practice issued in terms of the Act. (Sidumo & another v Rustenberg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) )


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