What is an automatically unfair reason for dismissal?

Asked by: Hermina O'Conner  |  Last update: June 30, 2022
Score: 4.2/5 (23 votes)

An automatically unfair dismissal is a dismissal that is so inherently unfair that an employee is not usually required to prove two years' continuous service. This is because employees are afforded specific proection by law if dismissed in circumstances where the dismissal violates their basic employment rights.

What are the examples of automatically unfair dismissal?

he dismissal will be regarded as automatically unfair if the worker is dismissed for:
  • exercising any of the rights given by the LRA or participating in proceedings in terms of the Act.
  • taking part in lawful union activities.
  • taking part in a legal strike or other industrial action or protest action.

What is the difference between unfair dismissal and automatically unfair dismissal?

If the reason for dismissing an employee was for one or more of these (non-exhaustive) reasons, then the dismissal will be considered automatically unfair. The difference between unfair dismissal and an automatic unfair dismissal is that the latter is available to all employees regardless of length of service.

What is the most common remedy for unfair dismissal?

  • Reinstatement, which is arguably the primary remedy for unfair dismissal. ...
  • Damages in lieu of reinstatement is a remedy available to an employee whose employer does not want to re-employ the unfairly dismissed employee. ...
  • Back pay.

What is automatically unfair dismissal South Africa?

A dismissal is automatically unfair when the dismissal is for the purpose of compelling the employee to agree to the employer's demand and such dismissal is temporary, pending the acceptance of the changes.

What are the reasons for automatic unfair dismissal? Ask the Expert

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How do you prove automatic unfair dismissal?

To prove that a dismissal was automatically unfair, the reasons that prompted the employer to dismiss the employee must be identified and it must be established that the employer was motivated by one or more of the reasons listed to get rid of the employee.

What is automatic dismissal?

This means that if an employer dismisses an employee because of his/her membership or affiliation to a trade union or involvement in union activities, it may amount to an automatically unfair dismissal.

What are the 5 fair reasons for dismissal?

A run-down of the most common reasons to dismiss an employee.
  1. Failure to do the job. Perhaps the most obvious (and arguably fairest) reason would be an employee's failure to do their job properly. ...
  2. Misconduct. Another common reason for dismissal is misconduct. ...
  3. Long term sick. ...
  4. Redundancy.

What percentage of unfair dismissal cases won?

80% of Unfair Dismissal cases are won by employees, such as you, because the employer has not followed fair procedures.

What steps can an employee take if unfairly dismissed?

If a dismissal is determined to be unfair, the employee may be reinstated, re-employed, or receive financial compensation. The dismissed employee is likely to receive compensation if: The employee does not wish to be reinstated.

Who qualifies for unfair dismissal?

What is the qualifying period of employment necessary to make a claim for unfair dismissal? You will need to have been continuously employed with the same employer for at least 23 months and 3 weeks without a break. Moreover, you must not have been served with a notice of your employment expiring before the 2 years.

What falls under unfair dismissal?

Unfair dismissal is the termination of employment without good cause or a fair procedure or both. The principle of “fairness” is unique to labour law. It's not applied in other areas of law such in the laws of contract, property, finance, etc. They apply the principle of “lawfulness”.

Do most employers settle before tribunal?

We often find that in order to force the parties to reach settlement issuing a claim in the Employment Tribunal is a good move. However, around 95% of cases settle before the full hearing at an Employment Tribunal.

Is it difficult to prove unfair dismissal?

Constructive dismissal is an exceptionally difficult area of law to prove beyond question, relying on a good deal of substantive evidence to support a claim.

What is the average payout for unfair dismissal UK?

For an unfair dismissal compensation awarded by a tribunal, the median award in 2019 – 2020 was £6,646, and the average award was £10,812. For more, see the government's Employment Tribunal and Employment Appeals Tribunal Annual Tables here.

What are the three grounds for dismissal?

The 3 grounds for fair dismissal
  • the conduct of the employee;
  • the capacity of the employee; and.
  • the operational requirements of the employer's business.

What are the four major grounds for dismissal?

The “causes” that are grounds for dismissal run the gamut including: illegal activity such as stealing or revealing trade secrets, dishonesty, breaking company rules, harassing or disrupting other workers, insubordination, excessive unexcused absences, and poor job performance by some objective measure.

On what grounds can you dismiss an employee?

The 5 fair reasons for dismissal
  • Conduct. In this case, an employee is being dismissed due to a reason related to their conduct. ...
  • Capability or performance. ...
  • Redundancy. ...
  • Statutory illegality or breach of a statutory restriction. ...
  • Some other substantial reason.

What is procedurally unfair?

Employers often find themselves having to pay out money in compensation at the CCMA because of procedural unfairness. This is usually brought about by a failure on the part of the employer to follow fair procedure, or a failure by the employer to follow his own disciplinary procedure.

Is it worth going to employment tribunal?

If you have a strong case, it's always worth making an employment tribunal claim. Applying doesn't cost anything, and the compensation you can receive is significant.

Can I take my employer to a tribunal for stress?

Where an employer has ignored warning signs and work-related stress has led to a serious physical or mental illness, the employer may be sued for negligence. However, negligence claims cannot be brought in the employment tribunal, only in the ordinary civil courts.

What is a valid reason for dismissal?

Performance. An employee may be dismissed from their job for poor performance. Generally, poor performance is when an employee has not been performing their role to a satisfactory standard. If you have been under-performing in your role, this may be a valid reason for dismissal.

When can an employee be fairly dismissed?

Fair procedure must be complied with for dismissal to be fair”. In order for dismissal to be fair, both substantive and procedural fairness must be complied with. Failure to comply with either or both, will result in the dismissal of an Employee being deemed unfair.

What are examples of gross misconduct?

Gross misconduct can include things like theft, physical violence, gross negligence or serious insubordination. With gross misconduct, you can dismiss the employee immediately as long as you follow a fair procedure.