Fair Dismissal Explained: A Guide for Employees

Code of Good Practice: Dismissal Summary

The Labour Relations Act protects employees against unfair dismissal. The Code explains what employers must do before ending employment and what employees’ rights are during a dismissal process.

1) When is a dismissal fair?

A dismissal must have:
1️⃣ A valid and fair reason, and
2️⃣ A fair process giving you a chance to respond

Fair reasons can relate to:

Conduct (misconduct or breaking company rules)
Capacity (performance issues or medical condition)
Operational requirements (restructuring/retrenchment)

2) Automatically unfair dismissals

A dismissal is unlawful if the reason is linked to:

Pregnancy or maternity leave
Participation in a protected strike
Unfair discrimination (race, gender, religion, etc.)

If this happens, you can challenge it through your union or the CCMA.

3) Dismissal for Misconduct

Before action is taken, you must:

Be told what you are accused of
Be given time to prepare
Have a chance to tell your side of the story
Be supported by a colleague/union representative

Dismissal is usually the last resort unless the misconduct is severe.

4) Dismissal for Performance or Ill Health

Your employer must:

Explain expectations clearly
Give reasonable guidance, training or support
Allow time to improve

Dismissal only happens if improvement is not possible and keeping you in the role is no longer viable.

5) Retrenchment (Operational Requirements)

The employer must:

Explain business reasons for possible job cuts
Consult with affected employees or unions
Explore alternatives to avoid retrenchment
Use fair and objective selection criteria
Pay severance where applicable (minimum 1 week per completed year of service)

6) Small Business Flexibility

The Code acknowledges that small businesses may use less formal processes — but your right to fairness still applies.

7) What to do if you feel unfairly treated

You can:

Speak to HR or your manager
Request representation by your union
Seek assistance from the CCMA or a Bargaining Council

You have the right to challenge unfair dismissal.

Bottom Line

You are protected from unfair dismissal.
Your employer must follow a fair process and explain the reason for ending employment.

If you’re unsure, ask for advice before signing anything.

The Code of Good Practice on Dismissal aims to protect both employers and employees — ensuring that workplace decisions are handled lawfully and respectfully. If you understand the process, you’re better equipped to protect your rights and maintain professionalism throughout.

At HR Consult, we guide both employers and employees through South Africa’s labour laws with fairness and empathy.

💡 If you believe your dismissal was unfair — or you simply want to understand your rights — get in touch.

Office: 012 997 0037

E-mail: info@hrconsultsa.co.za

Adapted by HR Consult, specialists in South African labour and employment law compliance.

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