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Ending Employment

Dismissing an Employee Fairly — The Overview

Every dismissal in South Africa must satisfy two separate tests: substantive fairness (was there a valid reason?) and procedural fairness (was a fair process followed?). Failing either one — not just both — makes the dismissal unfair under LRA s 188. The valid reasons are misconduct, incapacity (poor performance or ill health), and operational requirements (retrenchment) — each has its own process, detailed in the linked topics below.

Key facts

  • A dismissal needs BOTH substantive and procedural fairness — a fair reason with no process, or a perfect process with no valid reason, is still unfair.
  • The three fair reasons to dismiss are misconduct, incapacity, and operational requirements (LRA s 188(1)(a)) — anything outside these (or on an automatically unfair ground) is not a valid reason.
  • The employer bears the onus of proving both fairness elements if the dismissal is disputed (LRA s 192(2)) — this is why records matter so much throughout the process, not just at the final decision.
  • Remedies for unfair dismissal include reinstatement, re-employment, or compensation up to 12 months' pay (24 months for automatically unfair dismissals) — the CCMA or Labour Court decides which applies.

The law that applies

  • Labour Relations Act 66 of 1995 — ss 185, 188, 192(2), 193–194
  • LRA Code of Good Practice: Dismissal (Schedule 8) — full Code

Leading cases

Sidumo v Rustenburg Platinum Mines Ltd [2007] ZACC 22; 2008 (2) SA 24 (CC)

Fairness is decided afresh by the CCMA commissioner on all the evidence, not merely by reviewing whether the employer acted reasonably.

Practical steps

  1. Identify which of the three fair reasons genuinely applies before doing anything else.
  2. Follow that reason's specific process — don't improvise or blend processes.
  3. Document every step contemporaneously — notices, meetings, responses, decisions.
  4. Give a written outcome with reasons and the employee's referral rights.
  5. If in doubt, get advice before the dismissal, not after a CCMA referral arrives.

Frequently asked questions

Which of the three reasons applies to my situation?

Misconduct is for wrongdoing (see Running a Fair Disciplinary Process); incapacity covers poor performance (see Managing Poor Performance) and ill health/injury; operational requirements is retrenchment (see Retrenchment). Each has a distinct, non-interchangeable process.

Can I dismiss for a reason not on this list — e.g. the employee just isn't a good fit?

'Not a good fit' isn't itself a recognised reason unless it maps onto one of the three — e.g. genuine incompatibility affecting the workplace can sometimes be handled as incapacity, but this needs care and is a common source of successful disputes when handled casually.

Have a specific employee situation?

Ask Chat to Lex. It will take your specific facts and give you a cited assessment — not just the general position above — free.

Ask about dismissing an employee fairly — the overview

This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney or labour law specialist.