When Is Termination Unfair?
Under the Employment and Labour Relations Act (2004), a termination is unfair if:
- There was no valid reason (poor performance, misconduct, operational requirements) - Fair procedure was not followed (no warning, no hearing, no opportunity to respond) - Both: even with a valid reason, unfair procedure makes the termination unlawful
The law distinguishes between "unfair termination" (procedural or substantive) and "wrongful termination" (breach of contract terms). Both give you legal remedies.
Fair Termination Process
For a termination to be considered fair, an employer must:
**For poor performance:** 1. Give written warnings identifying the performance gap 2. Provide time and support to improve (typically 30-90 days) 3. Document the improvement process 4. If no improvement, issue a final warning 5. Hold a hearing before termination
**For misconduct:** 1. Investigate the alleged misconduct 2. Notify the employee in writing of the charges 3. Give the employee an opportunity to respond 4. Hold a disciplinary hearing 5. Allow the employee to bring a representative 6. Consider the evidence before deciding
**For retrenchment/redundancy:** 1. Consult with the employee (and union if applicable) 2. Apply fair selection criteria 3. Consider alternatives to termination 4. Pay severance (7 days basic pay per completed year) 5. Provide reasonable notice
What to Do If You're Unfairly Fired
**Act within 30 days:** You must file a complaint with the CMA (Commission for Mediation and Arbitration) within 30 days of termination. Missing this deadline can forfeit your rights.
**Gather evidence:** - Your employment contract - Pay slips - Any warning letters received - Emails or messages related to your termination - Witness contacts
**File at the CMA:** - Filing is free - You don't need a lawyer (but one helps) - The CMA will first attempt mediation - If mediation fails, the matter goes to arbitration
**Possible remedies:** - Reinstatement to your position - Compensation (up to 12 months salary) - Severance pay if applicable - Outstanding salary and benefits
**Key tip:** Document everything from the start of any employment dispute. Written records are your strongest protection.