Unjustified dismissal – What makes it unfair?

Before an employee can be dismissed from their employment the employer must ensure that:

  • there is good cause (a good reason) for the dismissal; and
  • a fair process was followed in dismissing the employee.

 If not, then the employee may raise a personal grievance.  

Good cause

What is considered good cause to dismiss will depend on the circumstances in each case.

An employer can only dismiss an employee if there is a good reason to do so, like misconduct, serious misconduct, poor performance or redundancy. 

The test is whether the employer has acted “…as a fair and reasonable employer could have done in all the circumstances at the time…”.  The word could rather than would, means that there is a range of responses which could be considered fair and reasonable, but the action of the employer must be proportionate to the circumstances. 

Misconduct and Serious Misconduct

Examples of misconduct can include being late for work, not following workplace policies or rules, not following reasonable instructions, swearing, etc.  Generally minor or single mid level incidents of misconduct are not sufficient grounds to dismiss an employee.   

However, if an employee has a history of repeated misconduct (for instance continuously turning up to work late, or not following reasonable instructions), then there may be grounds for dismissal.  An employer may be able to rely on previous warnings, or a final warning when they decide how to respond to new incidents of misconduct.  The employer cannot, however, ignore several incidents of misconduct and then suddenly dismiss an employee for a history of misconduct.  

When an employee is guilty of misconduct there is a range of options available to the employer including issuing a verbal warning (recorded in writing), giving a written warning, issuing a final warning, demotion, suspension, probation, etc.  Dismissal should be reserved for misconduct that is serious or ongoing.

Serious misconduct like fraud, dishonesty, assault, endangering the safety of employees or other persons at work may be grounds to dismiss an employee even after only one incident.  Serious misconduct is something that destroys the basic confidence or trust that is essential to the employment relationship, making it no longer possible or reasonable to continue to relationship.

Redundancy

An employee can be dismissed if their role has become surplus to the employer’s needs.  That is, the employer has either outsourced the work, the work is no longer required, the work is being divided amongst other existing employees, or something similar. 

Redundancy must be genuine, and not used as a cover to get rid of an unwanted employee.

An employer must still follow a fair process before making an employee redundant.

Poor performance or incompetence

Poor performance may come about when an employee is incompetent (i.e. does not have the skills require to do the job), or when a competent employee does not meet reasonable expectations.

Where an employee is required to hold certain qualifications, certifications or memberships an employer may be able to terminate an employee who does not meet the requirements (especially if it is set out as a requirement in an employment agreement).  For instance, if a truck driver becomes a disqualified driver, a lawyer is disbarred, or an apprentice electrician fails their registration exams, the employee will not be competent to do the job, and this could lead to dismissal.

If a competent employee fails to perform (for instance is not meeting sales targets, KPIs or is making too many errors), then the employer may have grounds for termination if the employee does not improve.  To learn more about what an employee can do if they are accused of poor performance click here.

An employer must follow a fair process before they decide to terminate an employee for poor performance or incompetence. 

Fair process

Before an employer decides to dismiss an employee, it is essential that the employer follow a fair process. 

  • The employer must provide the employee with sufficient information about the allegations against the employee (and any relevant evidence). 
  • The employer must give the employee an opportunity to provide feedback to the allegations or evidence (with the assistance of a support person or representative if the employee wants).
  • The employer must consider the feedback with an open mind before making any decisions. 

Failure to follow to a fair process may result in a personal grievance, and compensation to an employee, even if there is a good cause to dismiss

For our free guide on a fair disciplinary process, click here.

What can you do if you have been unfairly dismissed?

Being unfairly dismissed can have a huge impact on an employee financially, but also in terms of their mental wellbeing and their future employability.  Employers need to take care when they are taking action that will have negative consequences for their employees, and they should seek advice if they are unsure.

If you have been dismissed without good cause, or without the employer following a fair process, you may be able to raise a personal grievance for unjustified dismissal.  You only have 90 days to raise a personal grievance.

The types of remedies you may be entitled to can include reinstatement, compensation for loss of employment, compensation for hurt and humiliation, and compensation for suffering an unjustified disadvantage.   


Jaenine Badenhorst
Employment Lawyer