The Employment Act, 2007 sets out both a substantive and a procedural test for a lawful termination. An employer must have a valid, fair reason, typically the employee's conduct, capacity or compatibility with the role, or the employer's genuine operational requirements (redundancy), and must follow a fair procedure in arriving at the decision.
The procedural requirement is where many terminations fail even when the underlying reason is sound. Before dismissing an employee for misconduct or poor performance, the employer must explain the allegation in a language the employee understands and give the employee a real opportunity to respond, typically at a hearing, before any decision is made. A termination carried out without this step can be found unfair regardless of how serious the underlying conduct was.
An employee who considers their termination unfair may refer the matter to the Employment and Labour Relations Court, which can order reinstatement, re-engagement, or compensation of up to twelve months' gross salary, in addition to any notice pay or other terminal dues owed. Redundancies carry their own additional requirements, including notice to the labour officer and a fair basis for selecting affected employees. Employers are best served by documenting the process: the notice given, the hearing held, and the reasoning applied, before, not after, a termination takes effect.
This article is for general information and does not constitute legal advice. For advice on a specific matter, please contact our office.
