Dismissals

Question 1

S188: Other unfair dismissals contains

Answer 1

1.
A dismissal that is not automatically unfair, is unfair, if the employer fails to prove -

(a) that the reason for dismissal is a fair reason - (i) related to the employee’s conduct / capacity OR (ii) based on employer’s operational requirements; AND
(b) that the dismissal was procedurally fair.

2.
When considering whether it was substantively and procedurally fair, the code of good practice must be considered.

Question 2

S188 provides for

Answer 2

Other unfair dismissals

Question 3

Terminations that are not dismissals

Answer 3

1. Resignation (unless constructive dismissal)
2. Termination by effluxion of time / fulfilment of terms and conditions (beware of renewal expectations!)
3. Retirement age (normal or agreed)
4. Insolvency / compulsory winding up
5. Agreement / waiver / settlement
6. Death
7. Supervening impossibility
8. Deemed discharge ito legislation

Question 4

S192 LRA provides for…

Answer 4

Onus in dismissal disputes

Question 5

S192 LRA Onus in dismissal disputes says…

Answer 5

1. Employee must establish that there was a dismissal
2. Employer must establish the dismissal was fair.

Question 6

S186 LRA provides for…

Answer 6

What a dismissal is

Question 7

S186 LRA on what a dismissal is says…

Answer 7

1. employer has terminated employment with or without notice
2. an employee on fixed-term contract of employment reasonably expected the employer to
   renew a fixed-term contract of employment or to be retained in employment on an indefinite basis
3. employee refused back by employer after taking maternity leave
4. an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ some of them
5. an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee (constructive dismissal)
6. an employee terminated employment after a transfer (s 197/197A) because conditions or circumstances at work that are substantially less favourable than before transfer (constructive dismissal)

Question 8

Constructive dismissal authority

Answer 8

Centre for Autism Research

Question 9

Centre for Autism Research says …

Answer 9

Requirements:
1. employee terminated the contract involuntarily
2. continued employment must, objectively, be intolerable
3. intolerable circumstances must have been of the employer’s making, and the employer must be culpably responsible for the conduct that created the intolerable conditions

• Resignation need not be of immediate effect
• Generally, need to exhaust internal grievance procedure, except if: futile or dysfunctional

Question 10

S187(1) LRA provides for…

Answer 10

Automatically unfair dismissals

Question 11

S187(1) AUD says..

Answer 11

MAY NOT dismiss for any of these REASONS
1. Participating or supporting / indicating an intention to participate in or support a strike / protest action compliant with provisions

2. refusing to do work normally done by an employee participating in a strike (Unless work is necessary to prevent an actual danger to life / personal safety / health).
3. refusing to accept demand iro a matter of mutual interest.
4. Took action / intended to take action against employer by exercising any right in LRA or via proceedings ito LRA.
5. Preggers
6. Unfair discrimination
7. Transfers

Question 12

S187(2) contains..

Answer 12

Defences to unfair dismissals:
1. Inherent requirement of particular job
2. Dismissal based on age is fair if @ normal / agreed retirement age

Question 13

Authority for age defence in 187(2)(b)

Answer 13

Motor Industry Staff Association & another

Question 14

Motor Industry Staff Association & another says…

Answer 14

Where an employer expressly permits an employee to work beyond the agreed or normal retirement age, this does not constitute a waiver of the right to dismiss that employee in terms of s 187(2)(b) of the LRA…

Question 15

S190 provides for…

Answer 15

Date of dismissal

Question 16

S190 Date of dismissal says…

Answer 16

(1) The date of dismissal is the earlier of-
(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.
(2) Despite subsection (1)-
(a) if an employer has offered to renew on less favourable terms, or has failed to renew, a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract;
(b) if the employer refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work;
(c) if an employer refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee.

Question 17

S193(1) provides for…

Answer 17

Remedies

Question 18

S193(1) Remedies says…

Answer 18

(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may-
(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.

Question 19

S193(2) provides for…

Answer 19

When compensation

Question 20

S194 provides for…

Answer 20

Limits on compensation

Question 21

Authority for meaning of reinstatement

Answer 21

Equity Aviation Services

Question 22

Equity Aviation Services says that …

Answer 22

The ordinary meaning of the word ‘reinstate’ is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. . . As the language of s 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator. The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal.. . . Ordinarily then, if a commissioner of the CCMA orders the reinstatement of an employee that reinstatement will operate from the date of the award of the CCMA, unless the commissioner decides to render the reinstatement retrospective.

Question 23

Reinstatement order ≠ restore contract -> AUTH?

Answer 23

Kubeka

Question 25

Kubeka provides that…

Answer 25

a reinstatement order does not restore the contract of employment;

it merely directs the employees to tender their services and the employer to accept that tender;

when an employer fails to accept their tendered services, employees must bring contempt proceedings to compel the employer to accept the tender of services