Magister Philosophiae - MPhil / The right to fair dismissal in South Africa is prescribed in the Labour Relation Act 66 of
1995 as amended. Employees may only be dismissed on grounds of misconduct,
incapacity and operational requirements. The requirements for dismissal of employees
based on misconduct and incapacity are further addressed in Schedule 8 to the LRA, the
Code of Good Practice: Dismissal. Dismissal for misconduct needs to be fair in terms of
both procedure and substance. Procedural fairness generally involves holding a
disciplinary hearing before dismissing an employee. In terms of the South African Public
Service Act 103 of 1994 as amended, an employee who absents him-/herself from
official duties without permission of his or her head of department, office or institution
for a period exceeding one calendar month is deemed dismissed by operation of law.
Employees dismissed as such by operation of law in terms of the PSA are therefore not
afforded the right to appear in the disciplinary hearing as provided for in the LRA.
South African courts have dealt with a number of cases relating to dismissal by operation
of law in the public service. Some of the employees dismissed were reinstated by the
courts. Reasons for reinstatement included failing to meet the jurisdictional
requirements before invoking dismissal by operation of law.
The research will attempt to clarify the substantive and procedural steps required to
render a dismissal by operation of law in terms of the PSA fair in South Africa.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uwc/oai:etd.uwc.ac.za:11394/7052 |
| Date | January 2019 |
| Creators | Podile, Podile Jonas |
| Contributors | Huysamen, Elsabe |
| Publisher | University of the Western Cape |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Rights | University of the Western Cape |
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