According to South African law there are only three grounds for the fair dismissal of an employee, namely the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business.

1.Conduct of the employee

In order for the dismissal to be regarded as fair:

  • The employee must have contravened a workplace rule.
  • Such rule must be lawful and reasonable.
  • The employee must be knowledgeable of the rule.
  • The rule must be uniformly applied.
  • The dismissal must be considered an appropriate sanction.

2.Capacity of the employee

In order for the dismissal to be regarded as fair there must be evidence indicating either one of the following:

Poor work performance

  • The employee failed to meet a performance standard.
  • The employee must have been aware/could reasonably be expected to have been aware of the performance standard.
  • The employee was given a fair opportunity to meet the required performance standard.
  • The dismissal must be considered an appropriate sanction.

Ill Health/Injury

  • The employee is incapable of performing the work.
  • The employee cannot be reasonably accommodated.
  • There is no availability of any suitable alternative work.

Disability

  • The employee is disabled and unable to meet the inherent job requirements and cannot be reasonably accommodated in the workplace.

3.Operational requirements

When an employer finds itself in financial ruin, it may consider restructuring its organisation by retrenching employees based on its economic, technological, structural or similar needs.

The above three reasons for dismissal form the basis of ‘substantive fairness’. However, if an employer dismisses someone for fair reason, but fails to follow the correct procedure, the dismissal will still be deemed to be unfair.