Have you wondered what constitutes a dismissal, how to implement it lawfully, and the consequences of failing to abide by the relevant laws? Unfortunately, it is not always as easy as it seems. However, this article will provide a brief outline.

What is a dismissal?

Dismissal occurs when an employer terminates an employee’s employment, either with or without notice. The employer’s termination of the employment contract is recognised as a dismissal at common law.

The employee can either accept the termination and sue for damages or hold the employer to the contract and sue for specific performance.


Under the Labour Relations Act (LRA)[1] , dismissal is when the employment relationship is terminated by any of the following terms mentioned in Section 186(1)[2] of the LRA which are as follows:

  1. An employer terminates a contract of employment with or without notice;


  1. Failure to renew a fixed term contract where the employee reasonably expected the contract to be renewed, but the employer fails to renew, or offers to renew the contract on less favourable terms;


  1. An employer refused to allow an employee to resume work after
    • she took maternity leave in terms of any laws, collective agreement or her contract of employment or;
    • was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date of the birth of her child;
  2. An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another or;
  3. An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
  4. An employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of Section 197 or Section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.

Categories of dismissal

Automatically unfair dismissal

Section 187[3] of the LRA provides reasons why an employee may not be dismissed. The reason is related to employees’ participation in Union activities, such as protected strikes, absence during maternity leave, race, gender, ethnic or social origin, sexual orientation, and age or disability, to name a few. When it is established that the employee has been dismissed for any of these reasons, it would be deemed as unfair dismissal.  

Consequences of unfair dismissal

Being dragged to the CCMA, Bargaining Councils, and other Courts can have severe reputational and financial consequences for your business. Employees who are dismissed unfairly may have the remedies provided in section 193[4] of the LRA at their disposal. The remedies include re-employment or compensation and reinstatement with or without back pay. Granted on the remedies provided in Section 193 of the LRA. The employer may be ordered to pay an employee compensation, up to 24 months’ salary. However, in Section 193(2)(d) of the LRA, an employee may not be compensated if the dismissal was procedurally unfair.


Deciding to dismiss an employee should not be made in a split second. You, as the employer, should be sure to follow the correct disciplinary procedure and, that your reason or reasons for the dismissal is valid, that you have the necessary supporting evidence for dismissing an employee. A harsh decision could make you end up in hot waters and increase your chances of an unfair dismissal claim.

Contact an attorney at SchoemanLaw Inc for your legal needs!

[1] Labour Relations Act, 66 of 1995.

[2] Act 66 of 1995.

[3] Act 66 of 1995.

[4] Act 66 of 1995.