Dismissals Flashcards
What is substantive fairness?
Refers to a valid and fair reason to dismiss.
The LRA recognizes three grounds as valid reasons for a dismissal: an employee’s misconduct, an employee’s incapacity and the employer’s operational requirements. How the person was dismissed
What is procedural fairness?
Refers to a procedure during which the employee is given an opportunity to be heard before a dismissal is effected. Why the person was dismissed.
The LRA of 1995 does not envisage such a formal approach to procedural fairness.
(Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others )
What is the definition of a dismissal?
Termination by Employer: Any termination of employment by the employer, whether with or without notice, constitutes a dismissal. (NULAW v Barnard NO & Another)
Non-Renewal of Fixed-Term Contract: If an employee reasonably expected their fixed-term contract to be renewed on the same or similar terms, but the employer offers renewal on less favorable terms or does not renew it, it constitutes a dismissal.
Maternity Dismissal: If an employer refuses to allow an employee to return to work after maternity leave, it is considered a dismissal. (De Beer v SA Export Connection CC)
Selective Re-Employment: When an employer dismisses a group of employees for the same or similar reasons, and offers to re-employ some but not others, it constitutes a dismissal.
Constructive Dismissal: If an employee resigns due to the employer making continued employment intolerable, it is considered constructive dismissal. This includes situations where an employer’s conduct forces an employee to resign rather than directly terminating their employment.
Transfer Dismissal: After a transfer of a business (section 197 transfer), if the new employer provides substantially less favorable conditions to an employee, resignation by the employee constitutes constructive dismissal. This protects employees during business transfers to ensure they are not unfairly disadvantaged.
What are concerned automatically unfair dismissals?
Dismissal for Exercising Freedom of Association: It is automatically unfair to dismiss an employee for exercising their right to associate with a union or participate in union activities. This protection ensures that employees can freely engage in collective bargaining and union representation without fear of reprisal.
Dismissal for Lawful Disclosure of Information: If an employee discloses information that they are lawfully required or entitled to provide to another person, such as regulatory authorities or law enforcement, and is subsequently dismissed for this disclosure, it constitutes an automatically unfair dismissal.
Dismissal for Exercising Rights under the LRA: Employees have various rights under the Labour Relations Act (LRA), such as the right to participate in union activities, engage in protected strikes, or participate in proceedings related to labor disputes. Dismissal because an employee exercises any of these rights is automatically unfair.
Dismissal for Participating in Protected Strikes: Employees have the right to participate in protected strikes as a form of collective bargaining. Dismissing an employee for participating in such strikes or indicating an intention to do so is considered automatically unfair.
Dismissal for Refusing Duties during a Strike or Lock-out: Unless performing the work is necessary to prevent danger to life, personal safety, or health, dismissing an employee for refusing to perform the duties of other employees who are on strike or locked out is automatically unfair.
Dismissal due to a Lock-out: If employees are dismissed because they refuse to accept the employer’s demands during a lock-out (a tactic used by employers during disputes to shut down operations), it is automatically unfair under the LRA.
Dismissal related to Pregnancy: Dismissing an employee due to pregnancy, intended pregnancy, or reasons related to pregnancy is automatically unfair. This protection ensures that female employees are not penalized for exercising their right to maternity leave and related benefits.
Dismissal due to Unfair Discrimination: If an employer dismisses an employee based on unfair discrimination, such as discrimination based on race, gender, age, or any other arbitrary ground, the dismissal is automatically unfair. Fair discrimination based on inherent job requirements or retirement age is an exception.
Dismissal in the Context of a Transfer (Section 197 or 197A): When a business undergoes a transfer of ownership or management (either as a going concern or due to insolvency), employees’ contracts are automatically transferred to the new employer under certain conditions. Dismissing an employee during or as a result of such a transfer, if not handled in accordance with the legal requirements (similar employment conditions), can constitute an automatically unfair dismissal.
Dismissal for Making a Protected Disclosure (Whistle-blowing): The Protected Disclosures Act (Whistle-blower’s Act) protects employees who make disclosures about unlawful or irregular conduct in the workplace. Dismissing an employee for making a protected disclosure is automatically unfair.
What is the date of dismissal?
The date of dismissal is typically the date on which the employee’s contract of employment effectively terminates, or the date the employee leaves the service of the employer, whichever occurs first. This rule applies in most straightforward cases where the termination is clear and immediate.
If an employee is summarily dismissed for misconduct at a disciplinary hearing, and the dismissal is later confirmed on appeal, the date of dismissal is deemed to be the date of the initial dismissal after the disciplinary hearing. This means that the 30-day period for referring a dispute to the CCMA or a bargaining council starts from this initial dismissal date.
For employees on fixed-term contracts, the date of dismissal is determined as follows:
If the employer offers less favorable terms upon renewal or notifies the employee of non-renewal, the date of dismissal is the date of this offer or notification.
If an employer refuses to allow an employee to resume work after a period of absence, the date of dismissal is the initial refusal date.
In cases of refusal to reinstate or re-employ an employee, the date of dismissal is the initial refusal date.
When an employee’s employment is terminated on notice, the date of dismissal is the earlier of the notice expiry date or the date when the employee receives all outstanding salary.
