DISMISSAL, RETRENCHMENT AND SUSPENSION
A dismissal is to be regarded as automatically unfair if the employer dismisses an employee for any of the following reasons:
- the employee participated in or suported or indicated an intention to participate in or support a strie protest action that compllies with the provisions of Chapter 4 of the Act;
- the employee refused or indicated an intention to refuse to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter 4 or was locked out, unless that work was necessary to prevent an actual danger to life, personal safety, or health;
- to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
- the employee took action, or indicated an intention to take action, allowed by the Act, against the employer;
- the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy; or
- unfair discrimination against an employee, directly or indirectly on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability , religion, conscience, belief, political opinion, culture, language, marital status, or family responsibiity.
Nel, P.S, Geber, P.D., van Dyk P.S, Haasbroek G.D., Schultz H.B., Sono T., Werner, A. 2001. Human Resource Management p.117-118. 5th Edition. Oxford University Press. Cape Town South Africa
While employers have an undoubted right to dismiss (retrench) employees for economic, technical or structural needs an employer must do so fairly. Retrenchments should not occur until the employer has complied with certain preliminary procedural requirements, which are intended to minimise the prejudice to the affected employees. The Labour Relations Act 66/1995 compels employers to consult on the matter with the parties as specified by the Act when an employer contemplates retrenching employees.
An employee may be suspended pending a disciplinary hearing or as a sanction as an alternative to dismissal. The first type is not intended to be punitive but may be done if the employer feels that such an action is necessary for good administration or to ensure that the disciplinary investigation can effectively be conducted. Since this type is not punitive in nature the employer needs to continue to pay the employee, unless otherwise specified in statutory conditions. An employer may suspend an employee without pay as an alternative to dismissal provided that certain conditions are complied with.