Topic 5 : Overview of dismissal law; the meaning of ‘dismissal’

Question 1

Where do you start with a dismissal question?

Answer 1

Ask whether the person is an employee according to the process and test to determine an employee

Question 2

What are the 3 things that need to be proven in a dismissal case?

Answer 2

1. If the person is an employee
2. If the employee was dismissed
3. Was the dismissal unfair

Question 3

What recourse is available under the common law for dismissal?

Answer 3

Termination on notice or summary termination. Breach of contract, but little protection.

Question 4

Reasons for dismissal

Answer 4

1. Conduct/misconduct
2. Capacity or ability to work
3. Operational requirements

Question 5

When is a dismissal fair - S188 of LRA

Answer 5

1. Fair and valid reason related to misconduct/ incapacity/ operational requirements (substantive fairness)
   Misconduct – individual fault (intent/ negligence)
   Incapacity (poor work performance/ medical incapacity) – individual, but no fault
   Op req – also no fault, but external to employee – job disappears as a result of economic, technological, structural or similar reasons (def in s 213 LRA)
2. Fair procedure (procedural fairness)

Question 6

Remedies for unfair dismissal?

Answer 6

Reinstatement, re-employment, compensation

Question 7

Why would you not reinstate or re-employ a dismissed employee?

Answer 7

Employee does not want it
Not reasonable practicable
Continued relationship intolerable
Dismissal only procedurally unfair

Question 8

Defintion in S186(1)(a)

Answer 8

Termination of employment by the employer with or without notice.Material breach = summary dismissal (w/o notice)

Question 9

How are fixed term employees protected?

Answer 9

In terms of S186(1)(b) - prevents employer keeping an worker on and keep renewing to prevent liability. Terms and conditions less favourable than full time. This section asks if employee has reasonable expectation of renewal and can result in dismissal. Prevent circumvention of dismissal protection.

Question 10

What section in the LRA protects pregnant employees and how? Result?

Answer 10

S186(1)(c). Employer can’t refuse an employee to resume work after maternity leave. Results in automatic unfair dismissal.

Question 11

How is constructive dismissal defined in S186(1)(e)?

Answer 11

1 Employee terminates employment with or without notice (case where he had issues with manager, disciplinary inquiry, chairperson was interrupted, and told him to f-off for awhile, sent an email and resigned and went to CCMA. Evidence = he believed the guy told him he was dismissed. He did not resign…)
2. because (causation) (within reasonable time)
3. employer makes
4. continued employment intolerable - ‘a situation that is more than can be tolerated or endured; or insufferable. It is something which is simply too great to bear, not to be put up with or beyond the limits of tolerance’

Question 12

What are the requirements for constructive dismissal?

Answer 12

1. Employee must resign
2. Reason for resignation is that the continued employment had become intolerable
3. Must be the conduct of the employer that made it intolerable.