SU 5.2 Flashcards
9 Reasons which make dismissal automatically unfair
- An employee participated in a strike.
- An employee refused to do the work normally done in a day.
- Refusal from employees to accept a demand in respect of any matter of mutual interest between them and their employer.
- Employee took action in terms of the LRA
- Pregnancy
- Unfair discrimination
- Transfer of business in regards to section 197 and 197A of the LRA
- Making a protected disclosure in terms of the Protected Disclosures Act.
- Victims of unfair, discriminatory dismissals will be reinstated unless they prefer compensation
Defenses
- Dismissal based on age is fair if the employee has reached normal retirement age for persons employed in that capacity.
- Dismissal is based on an inherent requirement of that particular job.
Onus of an automatic unfair dismissal
The employee must provide sufficient evidence to raise a credible possibility that an automatic unfair dismissal has taken place.
Dominant or Proximate cause
This is used to determine whether the discriminating act is the reason for the dismissal.
There has to be an enquiry of the real reason for the dismissal of the employee.
Employee participating in a strike?
No employee may be dismissed for participating in a protected strike.
Case: SACWU v Afrox
Employee refuse to do work done in a day
unless the work the employee refused to do is necessary to prevent actual danger to life, personal safety, or health.
Took action in terms of the LRA
Employer may not dismiss an employee because the employee demands his rights in the workplace and took an action against the employer.
Pregnancy?
Women may not be dismissed due to pregnancy or taking maternity leave.
s197 and s197A
if the new employer offers less favorable working conditions, it may amount to a dismissal.
Protected Disclosure
the employee must have bona fide believe that the information is true.
Case: Grieve v Denel
