Unfair termination: what employers must prove

Under the Employment Act, 2007, an employer who dismisses an employee must prove two things: a valid and fair reason (sections 43 and 45) and a fair procedure (section 41).

Fair reasons

A reason must relate to the employee’s conduct, capacity or compatibility, or to the employer’s operational requirements. The employer must prove the reason existed and genuinely led to the dismissal.

Fair procedure (section 41)

Before dismissing for misconduct or poor performance, the employer must:

1. explain the reason to the employee in a language they understand,
2. allow the employee to have a fellow employee or union representative present, and
3. hear and consider the employee’s representations.

A show-cause letter followed by a disciplinary hearing, with minutes, is the usual way to comply.

Remedies

The Employment and Labour Relations Court may order reinstatement, re-engagement or compensation of up to twelve months’ gross salary (section 49), plus notice pay and accrued dues.

Time limit

Claims must generally be filed within three years of the cause of action (section 90).

For employers

• Keep written policies and follow them.
• Document warnings and performance reviews.
• Never skip the hearing, even for gross misconduct.

This article is general information, not legal advice on your situation.

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