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When is the dismissal of an employee substantively fair?

It often happens that an employer wants to dismiss an employee, but is not certain whether it would be substantively fair. Substantive fairness means that there is a fair or valid reason to dismiss an employee.

If an employee is dismissed and the reason is automatically unfair, an employer may be ordered to reinstate the employee to his position. In addition, the employer can be ordered to pay compensation equal to a maximum of 24 months’ remuneration calculated at the employee’s rate of remuneration at the time of dismissal.

To ensure that an employee’s dismissal is substantively fair, the following 5 rules should be followed:

  1. Did the employee break a workplace rule or standard of conduct?
  2. Was the rule or standard valid or reasonable?
  3. Was the employee aware, or could reasonably be expected to have been aware of the rule or standard?
  4. Was the rule or standard applied consistently?
  5. Was dismissal an appropriate sanction for the contravention?

If the answer to all 5 questions is ‘yes’ the dismissal of an employee would be considered substantively fair.