In terms of section 187 of the LRA, a dismissal is automatically unfair if the employer in dismissing the employee, unfairly discriminated against the employee directly or indirectly on any arbitrary ground, including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, belief...

What is a dismissal? 

A dismissal is when a contract of employment between employer and employee is terminated by the employer. Every person in South Africa has the right to fair labour practices, and one of those rights is the right not to be unfairly dismissed. Dismissal is regulated by section 186 of the Labour Relations Act (LRA) and a fair dismissal must be substantively and procedurally fair. Dismissal (fair) at the instance of the employer takes place when:

  • The employee conducts themselves in an improper manner;
  • The employee has no capacity to perform their job whether as a result of poor work performance or health related reasons; and
  • For operational requirements of the employer’s business.

Dismissal at the instance of the employee would be when the employee tenders their resignation, this is a unilateral act. Where an employee terminates their employment but termination was done as a result of the employer making the woking conditions intolerable, then a constructive dismissal is said to have taken place. In Jooste v Transnet it was held that to succeed, the employee must prove that s/he had not intended to terminate the employment relationship. If constructive dismissal is established, such dismissal is unfair. 

 

What constitutes a dismissal

  1. Failure to renew a fixed term contract: A number of employers have used this to dismiss an employee and avoid taking on employees on a permanent basis. The LRA states that non-renewal of a fixed term contract is a dismissal in those instances where the employee “reasonably expected” the employer to renew the contract on the same or similar terms and it failed to do so. The motive for a temporary employment relationship should therefore be bona fide and care should be taken by the employer that no expectation of permanent employment or contract renewal is created with the employee. All employment relationships, temporary or permanent, must be terminated fairly. The dismissal of a temporary employee prior to the end of a fixed-term contract, or even of a limited duration contract which contemplates early termination on notice, must still be both substantively and procedurally fair. In SA Rugby (Pty) Ltd v CCMA & Others, the court held that for the employee’s expectation to be reasonable there must be an objective basis for the creation of his expectation, apart from the subjective perception of the employee.
  2. Employment is terminated before it begins: In Wyeth SA (Pty) Ltd v Manqele & others it was held that when an employer who offers employment to a prospective employee, who accepts such offer, but the employer then withdraws the offer before employment has actually commenced, an unfair dismissal has occurred. The offer and acceptance of employment means that a contract of employment has come into being before commencement of the actual job.
  3. Employer’s refusal to allow an employee to resume work after maternity leave.
  4. Selective re-employment: an employer who has dismissed a number of employees for same or similar reasons only re-employs some of them.
  5. Termination of a contract of employment by employee with or without notice because the new employer provided such employee with employment conditions which were substantially less favourable than those provided by the old employer following a transfer in terms of section 197 of the LRA.
  6. Desertion and abscondment takes place when an employee repudiates their contract of employment by staying away from work for long periods with the intention of not continuing to work, the employer bases dismissal on this behaviour by employee.

 

Automatically unfair dismissal

In terms of section 187 of the LRA, a dismissal is automatically unfair if the employer in dismissing the employee, unfairly discriminated against the employee directly or indirectly on any arbitrary ground, including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, belief, political opinion, culture, marital status or language. In the absence of a good reason justifying a provision in a policy which has the effect of discriminating against an employee, such discrimination and dismissal will give rise to a claim for automatically unfair dismissal.

 

Remedies for unfair dismissal

  • The employee must refer a dispute to the CCMA within 30 days from dismissal;
  • Where 30days have lapsed the employee will have to make an application for condonation confirming reasons for their delay;
  • An employee may claim re-instatement (same terms as before dismissal), re-employment (new terms) or compensation (up to 12 months).

 

Disclaimer: the information provided is for educational purposes and does not constitute legal advice. Each matter is assessed on its own merits which can be determined through a consultation. To set up a consultation click on our “contact us” page and submit your details.

 

Author: Asanda Z.S Biyela LL.B (UJ)

Post a Comment

css.php