Workplace communication is often informal, fast, and reactive. However, what may seem like a passing comment or instruction can carry serious legal consequences. In many instances, everyday language used by employers or managers can be interpreted as terminating the employment relationship, even where no formal dismissal was intended.
Legal Framework
Section 188(1) of the Labour Relations Act 66 of 1995 (LRA) places the onus on the employer to prove that a dismissal was fair. Importantly, dismissal is not limited to formal written communication. The definition is broad and includes conduct or communication that reasonably leads an employee to believe that their employment has been terminated.
The key question is not what the employer intended, but how the employee reasonably interpreted the communication.
Risky Workplace Communication
Certain forms of communication frequently create risk, including:
- Sending messages (e.g. WhatsApp) indicating the employee is no longer needed.
- Telling an employee to “go home and not come back”.
- Preventing access to the workplace without explanation.
- Removing employees from communication platforms or systems.
These actions, especially when taken together, can strongly suggest termination of employment.
How Dismissal Is Interpreted
In a dispute before the Commission for Conciliation, Mediation and Arbitration (CCMA) or a Bargaining Council, the focus will be on:
- What was communicated.
- How it was communicated.
- Whether the employee reasonably believed they were dismissed.
Even where an employer denies dismissal, the surrounding conduct and language may be sufficient for a Commissioner to find that a dismissal occurred. The evidentiary burden is not necessarily high, so clear communication indicating termination may be enough to establish dismissal.
Application to Employers
Responsibility for communication often lies with managers and supervisors. This creates risk when managers act emotionally or impulsively, when authority is exercised without proper guidance, or when informal language is used in high-pressure situations. Even if such communication does not reflect the employer’s formal position, it may still bind the organisation. A single statement made in the heat of the moment can have lasting legal consequences.
Practical Steps for Employers
- Formalise disciplinary communication
Ensure all disciplinary action is clear, structured, and preferably in writing.
- Train managers and supervisors
Equip leadership with communication skills to avoid emotional or ambiguous language.
- Avoid reactive statements
Do not make statements that could be interpreted as termination in the heat of the moment.
- Clarify intent immediately
If there is unclear communication, address and correct it promptly.
- Control access decisions carefully
Removing access or excluding employees should be managed through formal processes.
- Treat communication as a legal act
Approach workplace communication with the same care as formal procedures.
Key Takeaways / Conclusion
Dismissal is not determined by intention, but by interpretation. Workplace communication carries legal consequences that extend beyond the moment in which it is made. Employers who treat communication with care, clarity, and professionalism significantly reduce their risk of disputes and place themselves in a far stronger position should those disputes arise.
Article By Zolile Maphosa
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)