It is axiomatic that fairness implies validity because otherwise employees could be dismissed for reasons that actually have nothing to do with the enterprise itself.

Click for a good example of invalidity

So assuming employees have proved that they were employed and then dismissed it will be up to senior management to prove:

  • a fair procedure;
  • a valid reason; and
  • the fairness of the dismissal based on the valid reason.

In other words it is necessary to look back to see if the reason for dismissal was valid. It has been argued that the review test for validity should not be the usual ‘reasonableness’ test but whether the decision was the correct one.

Assuming that the reason is valid it is then necessary to look forward to see what impact the conduct has had on the future employment relationship.  That decision should only be reviewable on the basis of reasonableness (Sidumo test).

Clearly if the reason involved gross misconduct it will in most instances be accepted that the trust relationship has been totally destroyed or that it would intolerable to expect management to continue employing that employee.

But the ILO Convention and the LRA make it clear that ‘fault’ is not required.  The reason for dismissal only has to be related to conduct or capacity.

In other words the issue of fault is really only relevant to the possible forfeiture of the benefits provided on termination by the BCEA.

So if the reason for dismissal was for a ’cause recognised by law’ as sufficient then technically employees forfeit any right to

  • reasonable notice, or pay instead thereof, and
  • any severance benefits.

Bear in mind that dismissed employees are only entitled to claim severance pay in terms of the BCEA if the reason for dismissal is based on operational requirements.

So when there is a valid reason, which may not involve fault, it is necessary to decide what impact it had on the employment relationship.

Failure to meet reasonable business standards of performance and conduct take many forms.  But essentially conduct refers to trust and performance relates to confidence.