Study Unit 7 Part 1 Flashcards
Unfair Dismissals
Unfair dismissal
What are the 2 requirements governing dismissal?
1.Substantive Fairness
2.Procedural Fairness
Unfair dismissal
what are the 3 requirements for a dismissal to be substantively fair?
1.Misconduct
2.Incapacity
3.Operational Requirements
>The LRA also recognizes “automatically unfair reasons”, which constitute automatically unfair dismissals (AUD)
Types of unfair dismissals
what is termination with/without notice?
-where the employer terminates the
contract on notice or terminates the contract summarily
- employer engaged in act that brings contract to an end
-Iit can constitute a dismissal should the employer terminate a contract after the conclusion of the contract of employment, but before the employee commences with
employment [Wyeth v Manqele]
Types of Unfair dismissals
what circumstances does a refusal to renew a fixed-term contract arise?
- A – employee had a reasonable expectation that employer would renew fixed term contract on same or similar terms
- B - employee had a reasonable expectation that employer would retain employee permanently on same terms but employer did not retain or offered to retain on less favourable terms
Types of Dismissal
What must an employee establish to determine whether there was a reasonable expectation of renewal?
1.there was a reasonable expectation of renewal or indefinite employment
2.the employer failed to renew or offer indefinite employment or offered to renew/offered indefinite employment on less favourable terms
what factors did the SA Rugby v CCMA case establish regarding a reasonable expectation for renewal?
1.A subjective expectation that the employer would renew the fixed-term contract
2.The expectation was reasonable+the employer didn’t renew the contract/offered to renew it on less favourable terms
Types of unfair dismissal
what is refusal to allow an employee to return to work after maternity leave?
Employees entitled to maternity leave ito of the BCEA
-Therefore employer cannot contract on terms that violate the right to
maternity leave
- dismissal applies in circumstances where employee wants to resume work after maternity leave but is prevented from doing so
-If dismissed for pregnancy or reason related to pregnancy= automatically
unfair dismissal,
Types of Unfair dismissal
what is selective re-employment?
-where employer who dismissed a
number of employees for the same or similar reason offered to re-employ some but not others
2 Requirements for unfair dismissal
1.There must have been a prior dismissal of 2 or more employees
2.There must have been a subsequent offer to reemploy certain of those dismissed employees at the
exclusion of others
Types of Unfair dismissal
what is constructive dismissal?
-employee resigns, with or without notice, because employment has been made intolerable
-Regarded as dismissal as employer’s actions “forces” the employee to resign
-Triggered by resignation
Types of Unfair dismissal
How is it determined that an employee has been constructively dismissed?
-objective approach=conduct of employer is relevant
-Strict test= act of resignation should be
an act of last resort when no alternatives remain
Types of Unfair Dismissal
What did the Murray v Minister of Defence case state regarding constructive dismissal?
The employer must be culpably responsible for the intolerable conditions and the employers conduct lacked reasonable and proper cause
-No requirement that the employer hmust have wanted to remove the employee
What are the relevant considerations to determine constructive dismissal?
1.employee must have
terminated the contract
2.employers conduct does not have to
amount to repudiation
3.situation must have become objectively
unbearable
4.employee must show that he/she
would not have resigned had it not been for employers conduct
5.employee must have exhausted all other remedies
Other forms of termination that are not dismissal
1.what is resignation?
2.What is effluxion of time?
3.What is reaching retirement age?
4.what is insolvency?
5.what is mutual agreement?
6.what is death?
7.what is supervening impossibility of performance?
1.A unilateral act by an employee that terminates the contract of employment
2.Contract of employment terminates on a fixed date/occurence of a specific event
3.A contract automatically expires once an employee reaches their retirement age
4.Contract of employment only terminate by act of the trustee/liquidator/auto termination (after 45 days)
5.Employee+employer agree to terminate contract by mutual consent
6.Contract of employment terminates on death of either party
7.a contract may terminate when performance of that contract becomes impossible
How is the date of dismissal determined?
-earlier of date on which the contract of employment was terminated; or
-the date the employee left the service
what is the date of dismissal if there was termination on notice?
earlier of date of expiry of the notice; or date employee is paid alloutstanding salary
Dispute Resolution
what is dispute resolution process for unfair dismissals?
-Disputes about unfair dismissal must be referred to the CCMA or
a bargaining council in 30 days for conciliation after the date of dismissal
-If the dispute was not resolved during conciliation, the dispute must be referred to the CCMA or bargaining council in 90 days for arbitration
Dispute Resolution
what is the role of the labour court in unfair dismissals?
Automatically unfair dismissals and dismissal on grounds of operational requirements are referred to the Labour Court for adjudication within 90 days if conciliation fails
Dispute Resolution
who bears the onus in dismissal disputes?
1.Onus on employee to establish that there was a dismissal
2.Onus on the employer to establish the fairness of the dismissa(substantive and
procedural on balance of probabilities)
Dispute Resolution
what is the reasonable commissioner test in unfair dismissal disputes ?
Sidumo v Rusteburg Platinum Mines
-The commissioners sense of fairness trumps the employers view
-BUT commissioner is not free to impose any sanction if in the employers position
-commissioner must ask whether the employers decision to dismiss was fair> value judgment-regarding interests of employer+employee
Remedies for Unfair Dismissal
what are the 3 remedies for unfair dismissal?
s193(1) of the LRA
1.Reinstatement
2.Re-employment
3.Compensation
Remedies for Unfair dismissal
what is the difference between re-instatement and re-employment?
1.Re-instatement is that the period of service between the employer+employee is unbroken and requires the employer to place the employee in the position they were in prior to dismissal
2.Re-employment- The employee is hired again
Remedies for unfair dismissal
when will re-instatement and re-employment not be awarded?
1.Employee doesn’t want to be re-instated/re-employed
2.Circumstances make continued emloyment intolerable
3.not reasonablly practical to re-instate the employee
4.dismissal is unfair only because employer didn’t follow a fair procedure
Remedies for unfair dismissal?
How is compensationa remedy for an unfair dismissal?
Compensation Must be just and equitable
* Period: maximum of 12 mths and
maximum of 24 mths for Automatic unfair dismissals
Remedies for unfair dismissal
what are the guidelines for appropriate compensation according to the Smit v Kit Kat Group case?
-nature+seriousness of injria
-circum. surrounding infringement
-behaviour of the defendent
-extent of plaintiff’s humilation
-abuse of the parties relationship
-attitude of the defendent after the injuria occured
Remedies for unfair dismissal case Law
what did the Booi v Amathole district case state regarding re-instatement+re-employment?
In cases of unfair dismissal, a court or arbitrator must consider the intolerability of the working relationship before ordering reinstatement
Automatically Unfair Dismissals
what are AUD’s?
-Dealt with in section 187 of the LRA
Lists a number of reasons for dismissal, which if established are regarded as automatically unfair
-At face value it could be a dismissal for one of two reasons (a permissible reason, as well as a non-permissible reason)
-Courts will interrogate facts to determine main reason for dismissal
Automatically Unfair Dismissals
who bears the onus of proof in AUD disputes?
1.Onus of proof on Employee:
* Must establish existence of dismissal; and
* Establish a prima facie case or raise a credible possibility that an automatically unfair reason was the main reason for dismissal
2.Onus of proof on Employer:
* Show that reason for dismissal was fair -did not fall within circumstances in section 187
Automatically Unfair Dismissals
what are the different forms of AUDs?
1.Dismissals contrary to section 5
2.Participation in a protected strike
3.Refusal to do work normally done by
striking workers
4.Employees refusal to accept a demand in
respect of any matter of mutual interest
5.Dismissal for exercising any right
onferred by the LRA
6.Pregnancy, intended pregnancy or any
reason related to pregnancy
6.Unfair Discrimination
7.A transfer contemplated by
section 197
8.A dismissal in breach of the PDA
Automatically Unfair Dismissals Case Law
what did the TFD Network Africa (Pty) Ltd v Faris case state regarding AUDS?
the employer dismissed her based on incapacity. However, the court found that the dismissal was actually automatically unfair because it was based on religion. She said she couldn’t work on Saturdays due to her religion
Automatically Unfair Dismissal Case Law
what did the Legal Aid SA v Jansen case state regarding AUD’s?
A dismissal of an employee who suffers from a mental condition, of which the employer is aware, for misconduct in circumstances where the acts of misconduct are inextricably intertwined with the employee’s conduct constitutes an automatically unfair dismissal and unfair discrimination
