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The labour law provides that 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 a fair procedure and in terms of the 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 misconduct

An employer should establish disciplinary rules and acceptable standards of conduct within the business.  In the case of misconduct by an employee, the employer should purse corrective or progressive disciplinary procedures to rectify the situation.  

Serious offences may include:  

  • Gross dishonesty,

  • Wilful damage to property,

  • Wilful endangering of the safety of others,

  • Assault and fighting,

  • Gross insubordination,

  • Insolence,

  • Insubordination,

  • Sexual harassment,

  • Abusive language,

  • Intoxication on duty,

  • Time related offences,

  • Collective absenteeism. 

Guidelines in cases of dismissal for misconduct:

Any person who is determining whether a dismissal for misconduct is unfair in terms of the labour law should consider-

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and  

(b) if a rule or standard was contravened, whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.  

For any dismissal to be fair in law,  it needs to be substantively and procedurally fair. Substantive fairness would include satisfying the following:

  •  Was the employee guilty of the offence charged?

  • Did the gravity of the offence justify the penalty of dismissal?

Procedural fairness in respect of a Disciplinary Hearing would include:  

  • Adequate notice,

  • The hearing must precede the decision,

  • The hearing must be timeous,

  • The employee must be informed of the charge/ charges,

  • The employee should be present at the hearing,

  • The employee must be permitted representation (fellow employee or union member),  

  • The employee must be allowed to call witnesses,

  • The presiding officer should keep minutes,

  •  The presiding officer should be impartial

Onus in dismissal disputes:

Bear in mind s192 of the Act, which states that:
1. In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
2. If the existence of the dismissal is established, the employer must prove that the dismissal is fair.

Compensation for unfair dismissal:

The Labour Relations Act now provides for a greater degree of discretion for arbitrators and judges when it comes to compensation and affixes the maximum amount of compensation for an unfair dismissal at twelve months salary in the case of dismissals that are substantively unfair, procedurally unfair or both.


Disputes over a dismissal based on misconduct must be referred immediately to the CCMA/ Bargaining Council.  Should you need assistance with the enforcing the labour law, call Labour Protect on 0860 522687 and you will be automatically routed to the nearest labour expert on the network... 

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