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Labour Law: Dismissals

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The Rights of an Employee with Regards to Dismissals

Every employee has the right not to be unfairly dismissed. The Labour Relations Act recognizes three grounds on which a termination might be legitimate. These include: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer's business.

Requirements for fair dismissal: there must always be a fair reason for the dismissal; and the dismissal must have been affected in accordance with a fair procedure.

Dismissals based on operational requirements (section 189 of the LRA) When an employer contemplates dismissing one or more employees for reasons based on operational requirements the employer must consult with the employee/ representative.

During consultation the parties should reach consensus on the following appropriate measures to: avoid the dismissals; minimize the number of dismissals; change the timing of the dismissals; to mitigate the adverse effects of the dismissals; the method for selecting the employees to be dismissed; and the severance pay for dismissed employees.

The employer must disclose in writing to the other consulting party all relevant information, but are not limited to the following: reasons for the proposed dismissals; alternatives that the employer considered before proposing the dismissals; and the reasons for rejecting each of those alternatives; number of employees likely to be affected and the job categories in which they are employed; proposed method for selecting which employees to dismiss; time when, or the period during which, the dismissals are likely to take affect; severance pay proposed; any assistance that the employer proposes to offer to the employees likely to be dismissed; and possibility of the future re-employment of the employees who are dismissed.

Date: 23rd May 2014
Legislation: Labour Relations Act, 66 of 1995

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