There is no employment-at-will. Termination is permissible but must be both substantively and procedurally fair. Dismissal is only justifiable by reason of misconduct, incapacity (ie, ill-health or performance) or operational requirements. Termination by effluxion of time (ie, fixed term or retirement age) is not considered dismissal; hence there is no requirement for a fair reason or fair process in such circumstances.
All employees, regardless of their income or length of service, are protected from unfair dismissal.
There are increased penalties for automatically unfair dismissals. Automatically unfair dismissals include for instance dismissals due to employee participation in lawful strike action, dismissals due to an employee's pregnancy or a reason related to pregnancy, dismissal on account of having made a protected disclosure, dismissal related to a transfer and dismissal for any unfairly discriminatory reason.
No approval is required from any labor authority unless this is a condition imposed by the competition law authorities arising from an intermediate or large merger.
Strict information and consultation rules apply to all retrenchments (ie, operational requirement dismissals or retrenchments). Additional requirements apply to large-scale retrenchments which are governed by section 189A of the Labour Relations Act, 1995. This applies where the employer employs more than 50 employees and contemplates the retrenchment of a prescribed threshold number of employees compared with the total number of employees in the workforce, taken together with the number of employees retrenched during the past 12 months.
No notice to government officials required, but the involvement of the Commission for Conciliation, Mediation and Arbitration is required in the case of mass retrenchments.
Except for the limited instances justifying summary dismissal, minimum BCEA notice periods of between 1 week and 4 weeks apply, unless contracts of employment provide for longer notice, or a collective agreement provides a shorter period. Notice to be given in writing. Notice cannot be given while the employee is on any type of leave.
Employer may freely elect to pay remuneration in lieu of notice, irrespective of who gives notice. The decision to waive the obligation to work during a notice period rests with the employer, but the employee must agree to a waiver of the obligation to pay remuneration. The employee cannot be compelled to take accrued leave during the notice period. Garden leave is not regulated by statute.
Only payable in the event of operational requirement dismissals. Minimum of 1 week's remuneration per completed year of service, subject to additional payments agreed upon in the consultation period. Severance is one of the mandatory topics of consultation.
Last modified 1 Jul 2024
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