SU 5.1 Flashcards
What is Dismissal?
Dismissal is the termination of the employment contract by the employer through words or conduct.
Section 185 of the LRA
The employee has the right not to be unfairly dismissed and not to be subjected to unfair labour practices.
The test for fairness is divided into two:
- Substantive fairness
- Procedural fairness
Dismissal is still unfair…
Dismissal is still unfair even if there is a fair reason, but there was no fair procedure.
What is Misconduct?
Misconduct is the unlawful behavior of the employee which he can be held accountable for
What is Incapacity?
Incapacity is the inability to perform work that the employee was employed to do.
Operational requirements:
- Structural
- Economical
- Technological interests of the employer.
- Employer terminates contract with or without notice
this type of dismissal is a common unilateral termination of a contract
SABC broadcasting v CCMA
Failure to renew fixed term contract
Fixed term contract terminates automatically when that period expires.
Case: SA Rugby Players v SA Rugby
Dismissal due to reasons relating to pregnancy
women shall not be dismissed due to pregnancy or taking maternity leave.
Selective re-employment
When a group of employees is dismissed for the same or similar reasons but the employer decides to re-employ a certain number.
The employees not re-employed may claim unfair dismissal.
Constructive dismissal
this is when the employer places pressure on the employee to resign, and makes it intolerable to work in the workplace.
s197 and s197A transfer of business
New employer offers less favorable conditions to the employees at work
Misconduct can be…
Assault, Theft and fighting
Three forms of fair dismissals
Misconduct
Incapability
Operational requirements
