A dismissal is unfair if a fair procedure was not followed, even if the reason for the dismissal is fair and can be justified due to the seriousness of the offence.
The Code of Good Practice contained in Scheduled 8 of the Labour Relations Act 66 of 1995 provides guidelines for the fair procedure to be followed when an employer contemplates dismissing an employee for reasons related to conduct or capacity.
There are three grounds on which a dismissal might be legitimate in terms of the Code of Good Practice. These three grounds are as follows:
- The employee's conduct (misconduct);
- The employee's capacity;
- The employer's operational requirements.
An employer must be able to prove that a dismissal was effected due to one of the three grounds listed above and that a fair procedure was followed as stipulated in the Code of Good Practice.
The dismissal is unfair if the employer fails to do so.
Contact us should you require more information regarding the dismissal procedure.