Dismissal must be for a fair reason (substantively fair) as well as in accordance with a fair procedure (procedurally fair), and it can take many forms. What is an unfair dismissal? Scorpion Legal Protection explains the different situations below.

1. Terminating an employment contract unfairly

Your employment contract is terminated by the employer with or without giving you notice, but the contract is terminated without a fair reason or without following the correct procedure as laid out in the Labour Relations Act. For example, you are dismissed for a fair reason, but the employer never had a disciplinary hearing with you, so the process is unfair.

2. Non-renewal of a fixed term contract

This can sometimes be a case of unfair dismissal if the person had a reasonable expectation of renewal of the contract. A fixed-term contract is a contract for a limited period of time, for example, hiring a temporary employee to replace someone who is sick or on maternity leave. When the time of the contract comes to an end, so does the employment contract. But if the employee is given a reasonable expectation that the contract will be renewed, for example the employer verbally or otherwise promises the temporary employee this, then it’s also seen as a dismissal. The employee will have to prove that there was a reasonable expectation of continued work in order to claim unfair dismissal. We discuss fixed term contracts in more detail here.

3. Refusing employment after maternity leave

An employer may not dismiss an employee for going on maternity leave. Section 187(1)(e) of the LRA prohibits the dismissal of an employee for any reason related to her pregnancy. In fact, this section makes such a dismissal automatically unfair. An employer may not use pregnancy as an excuse for retrenchment, as long as when the employee returns to work, she is able to behave and work according to the employer’s standards, and has not been so incapacitated due to illness or injury that she is unable to do her duties. We discuss retrenchment and pregnancy in more detail here.

4. Selective re-employment of employees

Selective re-employment is when employees are fairly dismissed and then the employer unfairly chooses to re-employ only some employees. For example, the employer decides to dismiss employees for participating in an unlawful strike (the dismissal is fair), but then later decides to re-employ certain employees. The employees chosen to be rehired are chosen on unfair grounds, for example, only the men are hired back, or the pregnant employee is not chosen, or employees that belong to a specific religion or culture are not hired back. Those who were not hired back could make a case for unfair dismissal.

5. Constructive dismissal

This is where an employee resigns because he/she cannot continue working because of the conditions of the workplace. In other words, you feel your only choice is to resign because continued employment is intolerable. For example, an employee resigns because of discrimination or sexual harassment. There are certain things you have to prove for constructive dismissal. We discuss constructive dismissal in more detail here.

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* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.