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In terms of the labour law, every employee has the right not to be unfairly dismissed.  Once the existence of the dismissal is established, the employer must prove that the reason for the dismissal is a fair reason and effected in accordance with the labour law.  If there is a dispute about the fairness of a dismissal, the aggrieved employee has 30 days to refer the matter to the CCMA or the appropriate Bargaining Council.

Dismissal for poor work performance:

In terms of the law, a newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counseling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee.

After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-

(a) given the employee appropriate evaluation, instruction, training, guidance or counseling; and

(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.

The labour law provides that the procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.

In the process, there should be procedural fairness, which would include  the employee's right to be heard and to be assisted by a trade union, representative or a fellow employee.  


Disputes over a dismissal based on poor performance must be referred immediately in terms of the law to the CCMA/ Bargaining Council.  Should you need assistance, call Labour Protect on 0860 522687 and you will be automatically routed to the nearest labour expert on the network...  This service is free to our Current Members.

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