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The Employment Law is law regulating the workplace in respect of Employer and Employee relations, i.e collective bargaining, establishment of trade unions and employer organisations, establishment of specialised tribunals for dispute resolution, dismissal, retrenchment, unfair labour practices, restructuring etc
Dismissal occurs when the Employer has terminated the contract of employment with or without notice, when an Employee reasonably expected the employer to renew a fixed term contract of employment on the same terms and has failed to do so, when an Employee resigns because the Employer made continued employment intolerable, when the Employer refuses to allow the Employee to resume work after returning from maternity leave etc.
Requirements of Dismissal
• The Dismissal has to be effected in accordance with the correct procedures (Procedural Fairness).
• The Dismissal has to in relation to a fair and legally acceptable reason (Substantive Fairness).
• Dismissal must be appropriate in the circumstances.
The Employer must follow the correct procedures when dismissing an Employee for whatever reason.
For example when the Employer wishes to dismiss an Employee for misconduct the Employee is entitled to receive sufficient notice of the disciplinary hearing, be notified of the charges against him, be given the opportunity to prepare a defence to the allegations brought against him, have the hearing adjudicated by an impartial chairperson and be allowed to challenge the evidence brought against him/her as well as present his/her full version of the events to the tribunal.
Should any of these requirements not be met by the Employer such a dismissal may be unfair and the Employer may be ordered to pay compensation to the Employee.
The processes differ widely for alternative reasons for dismissal such as dismissals based on poor performance and dismissals due to operational requirements (retrenchment).
Even when an Employer follows the correct procedure relating to the dismissal of an Employee but the reasons given for the dismissal is not legally acceptable and fair such dismissal may be unfair and in this instance might result in the Employer having to reinstate the Employee along with compensation.
There are 5 requirements which determines whether or not a dismissal was substantively fair and an Employer must ensure that it clears all of the requirements before embarking on the process of dismissing an Employee.