C&A Friedlander Attorneys


Labour law emphasises that every employee has the right not to be dismissed unfairly. The Act defines the meaning of dismissal, as well as provides us with substantive and procedural guidelines to determine whether a dismissal was fair or not.

Dismissal means the following: The termination of a contract of employment with or without notice, or if an employer fails to provide a fixed-term contract, or an employer renews an existing contract, but on less favourable terms than the employee had reasonably expected.

Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee’s conduct or capacity, or if it can be proved that the dismissal is based on the employer’s operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in the legislation which outlines the discharge process that must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour be determined.

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations the employee has decided not to honour the code of conduct and has knowingly violated a rule and therefore should be disciplined. This may result in written warnings and/or possible dismissal.

In contrast, poor performance involves a situation where the employee is not in deliberate violation of regulations but instead may involve circumstances where the employee does not necessarily have control. In this case other factors could be the cause of poor performance, such as a lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions to the poor performance.

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees, or has acquired new computers or sophisticated equipment which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer must take to protect his or her business from being ruined financially.

It is very important that the process contained in section 189 of the Labour Relations Act be followed here. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.