Five examples of automatically unfair dismissals, where the reason for firing is inherently illegitimate, include dismissal for pregnancy/parental leave, raising health & safety concerns, whistleblowing (protected disclosures), trade union activities, or exercising a statutory right (like asking for minimum wage or making a flexible working request). These dismissals often bypass service requirements, allowing claims regardless of how long someone has worked for the employer.
Automatically unfair reasons for dismissal
family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants. acting as an employee representative. acting as a trade union representative. acting as an occupational pension scheme trustee.
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.
The five generally accepted fair reasons for dismissal are Conduct, Capability/Performance, Redundancy, Statutory Illegality (breach of statutory duty), and Some Other Substantial Reason (SOSR), all requiring a fair process including investigation, warnings (usually), and opportunity for the employee to respond. These cover an employee's behavior (misconduct), ability to do the job (performance/health), the job no longer existing (redundancy), legal restrictions (losing a license), or other significant business reasons like irreparable personality clashes.
Acceptable Reasons for Termination
The following are just causes for termination:
The biggest red flags at work often center around toxic leadership, poor communication, and a high-turnover culture, signaling deep issues like micromanagement, lack of transparency, burnout, and disrespect, where problems are normalized and employee well-being is ignored in favor of short-term gains. Key indicators include managers who don't support staff, excessive gossip, broken promises, constant negativity, and environments where speaking up feels unsafe or pointless, often leading to high employee churn.
It is illegal for an employer to discriminate against a job applicant because of his or her race, color, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
It might be unfair dismissal if an employee worked for their employer for at least 2 years and any of the following apply:
Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination.
Gather records detailing any discrimination or retaliation you face. This may include emails, memos, or witness accounts. Additionally, collect evidence demonstrating a pattern of unfair treatment. It will showcase consistent behavior that supports your claim.
Serious misconduct includes behaviour such as theft, sexual harassment, or other serious grounds. Before you dismiss an employee for serious misconduct, remember that: If the Small Business Fair Dismissal Code applies, you have a reasonable belief of the bad conduct.
Unfair dismissal
Situations when your dismissal is likely to be unfair include if you: asked for flexible working. refused to give up your working time rights - for example, to take rest breaks.
Where the reason for the dismissal relates to an infringement of that fundamental right, it is an automatically unfair dismissal. So too, the right to strike is a fundamental right; accordingly, a dismissal for participation in a protected strike (a strike which complies with the LRA) will be automatically unfair.
This is when you dismiss someone instantly without notice or pay in lieu of notice, usually because of gross misconduct (for example theft, fraud, violence). Tribunals may rule a summary dismissal as 'procedurally unfair' - you can only suspend someone without pay if their contract says you can do this.
Section 188 (1) of the LRA states that a dismissal which is not automatically unfair is still unfair if the employer fails to prove – (a) That the reason for the dismissal is a fair reason – (i) Related to the employee's conduct or capacity; or (ii) Based on the employer's operational requirements; and (iii) That the ...
It is often difficult to successfully bring a claim for constrictive dismissal because of the various hurdles that an employee has to overcome at tribunal. However, where an employee does succeed, they then receive the same level of compensation as they would have received for a claim for unfair dismissal.
What should I do if I feel I am being pushed out of my job? Stay employed, take legal advice early, and do not resign without a clear plan. There are usually options available to you, whether you want to negotiate an exit or stay and improve your situation.
Yes, but only in exceptional circumstances, such as gross misconduct. Your employer can dismiss without notice if it genuinely and reasonably believes, following a fair investigation, that you are guilty of gross misconduct. Such a dismissal is called a 'summary dismissal'.
The employee must first present evidence that he is a member of a protected class, he was qualified for the position he held, he suffered an adverse employment action such as being fired, and that he was replaced with another worker who is not a member of that protected class.
The laws enforced by EEOC protect you from employment discrimination when it involves: Unfair treatment because of your race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information.
Over the past decade, the Equal Employment Opportunity Commission (EEOC) has reported that retaliation is the most common issue alleged by federal employees and the most common discrimination finding in federal sector cases.
Many words that scare human resources fall into clear categories: Legal and sensitive terms: “harassment,” “discrimination,” “lawsuit,” “retaliation.” These words trigger legal and compliance concerns because they suggest unresolved, serious workplace issues.
The "3-month rule" in a job refers to the common probationary period where employers assess a new hire's performance, skills, and cultural fit, while the employee learns the role and decides if the job is right for them; it's a crucial time for observation, feedback, and proving value, often with potential limitations on benefits until the period ends. It's also advice for new hires to "hang in there" for three months to get acclimated and evaluate the job before making big decisions.
Five key signs of work-related stress include physical symptoms (headaches, fatigue, sleep issues), emotional changes (irritability, anxiety, mood swings), cognitive difficulties (trouble focusing, poor decision-making), behavioral shifts (withdrawal, increased substance use), and performance decline (lower output, errors, procrastination). These signs often manifest as a persistent feeling of being overwhelmed, leading to physical tension, mental fog, and strained relationships at work and home.