Labour and Employment Law Attorneys

A dismissal may be unfair if there was no fair reason or no fair procedure. Reasons can include misconduct, incapacity, operational requirements or other recognised grounds. The employer generally bears the burden of proving fairness once dismissal is established.

Unfair dismissal disputes generally have short referral periods, often 30 days from dismissal, subject to rules and condonation if late. Time periods vary by dispute type. Employees should act quickly and employers should keep all documents.

A fair process is generally required before dismissal for misconduct. The process does not always need to look like a court, but the employee should usually know the allegations and have an opportunity to respond. Policies and circumstances matter.

Incapacity relates to poor performance or ill health/injury where the employee may be unable to meet required standards or perform duties. Employers must generally follow a fair process, consider support, alternatives and medical information where relevant.

Retrenchment is dismissal for operational requirements, such as economic, structural or technological needs. Employers must consult meaningfully and follow statutory requirements. Selection criteria, alternatives and severance pay are often disputed.

Sometimes an employee alleges constructive dismissal, meaning the employer made continued employment intolerable. This is difficult to prove and fact-specific. An employee should obtain advice before resigning if they intend to rely on constructive dismissal.

Deductions and withholding salary are regulated. Employers should not make unauthorised deductions, and employees should keep payslips, contracts and correspondence. The lawfulness depends on the reason, agreement and applicable legislation.

Restraints can be enforceable if reasonable and linked to a protectable interest such as confidential information or customer connections. Duration, area and scope matter. Both employers and employees should seek advice before threatening or ignoring a restraint.

The CCMA may conciliate disputes and, if unresolved, arbitrate certain matters. Preparation includes documents, witness evidence, chronology and understanding the remedy sought. Legal representation rules may differ depending on the dispute.

Employers should get advice before dismissals, retrenchments, disciplinary hearings involving serious misconduct, settlement offers, workplace investigations and CCMA proceedings. Correct procedure at the start reduces risk later.