Unit 4 ch 4

Question 1

What is the common law rule regarding dismissal by an employer?

Answer 1

Under common law, an employer could dismiss an employee lawfully at any time by giving the required notice and without having to provide reasons for the dismissal. However, if the dismissal was without notice, reasons had to be given.

Question 2

How does the LRA influence the fairness of dismissals?

Answer 2

The LRA (Labour Relations Act) introduces fairness as a requirement for dismissal, in addition to common law lawfulness. Employers must follow both substantive and procedural fairness when dismissing an employee.

Question 3

What is the role of the industrial court in developing unfair dismissal practices?

Answer 3

The industrial court, established after the Wiehahn Commission’s report, adopted concepts from administrative law to establish the rules distinguishing between fair and unfair dismissal, which were later codified in the LRA and the Code of Good Practice.

Question 4

What must be established first in a dismissal dispute?

Answer 4

It must first be established whether the person is an employee. If not, the individual would not be protected by the LRA and might have to pursue a breach of contract claim in civil courts.

Question 5

What are the three permissible reasons for dismissal under the LRA?

Answer 5

The three permissible reasons for dismissal are misconduct, incapacity, and operational requirements.

Question 6

What is the definition of ‘dismissal’ according to section 186 of the LRA?

Answer 6

Dismissal is when an employer terminates employment with or without notice. It includes situations where an employee had a reasonable expectation of continued employment, maternity leave refusal, selective re-employment, and constructive dismissal due to intolerable working conditions or less favorable conditions after a business transfer.

Question 7

What is constructive dismissal?

Answer 7

Constructive dismissal occurs when an employee resigns because the employer made continued employment intolerable. The employee must prove that the employer’s behavior left no choice but to resign.

Question 8

What is the burden of proof once dismissal is established?

Answer 8

Once dismissal is proven by the employee, the employer must prove that the dismissal was substantively and procedurally fair.

Question 9

What is the significance of section 186(1)(b) in terms of fixed-term contracts?

Answer 9

Section 186(1)(b) extends the definition of dismissal to include situations where an employee reasonably expected the renewal of a fixed-term contract but it was not renewed or was renewed on less favorable terms.

Question 10

How does the LRA handle maternity leave and dismissal?

Answer 10

Under the LRA, if an employer refuses to allow an employee to resume work after maternity leave, it constitutes a dismissal. This could also be automatically unfair in certain cases.

Question 11

What is selective re-employment and how does it relate to dismissal?

Answer 11

Selective re-employment occurs when an employer re-employs only some employees after dismissing a group for the same reasons. The employer must prove that the selective re-employment was fair.

Question 12

How does section 186(1)(f) of the LRA protect employees after a business transfer?

Answer 12

If an employee resigns because of less favorable conditions after a business transfer, it is considered a dismissal. The employer must prove fairness in implementing these conditions.

Question 13

What is automatically unfair dismissal?

Answer 13

A dismissal that is unjustified under any circumstances, as it violates specific employee rights or is based on certain prohibited reasons listed under Section 187 of the LRA.

Question 14

What is the significance of Section 5 in relation to automatically unfair dismissal?

Answer 14

Section 5 provides protection for employees in relation to their right to freedom of association. Dismissal for exercising this right is automatically unfair.

Question 15

Can an employee be dismissed for participating in a protected strike?

Answer 15

No, dismissal for participating in or supporting a protected strike is automatically unfair, except in cases of misconduct during the strike or dismissal based on operational requirements.

Question 16

Can dismissal be justified if an employee refuses to work during a protected strike?

Answer 16

Dismissal for refusing to do the work of employees engaged in a protected strike is automatically unfair, unless that work is necessary to prevent danger to life or personal safety.

Question 17

What is considered automatically unfair in terms of pregnancy?

Answer 17

Dismissal of an employee due to pregnancy, intended pregnancy, or any reason related to pregnancy is automatically unfair.

Question 18

What is the rule regarding dismissal based on unfair discrimination?

Answer 18

Dismissal based on direct or indirect discrimination, including grounds like race, gender, age, disability, and religion, is automatically unfair.

Question 19

Is dismissal related to the transfer of a business automatically unfair?

Answer 19

Yes, dismissal due to the transfer of a business as a going concern (Sections 197 and 197A of the LRA) is automatically unfair.

Question 20

What protection does the Protected Disclosures Act offer against dismissal?

Answer 20

Employees dismissed for making a protected disclosure (whistleblowing) are protected under the Act, and such dismissals are automatically unfair.

Question 21

What are the two grounds for justifying discriminatory dismissals?

Answer 21

(1) If the reason is based on an inherent requirement of the job, and (2) if the dismissal is based on age and the employee has reached the normal or agreed retirement age.

Question 22

Can dismissal be justified if based on the employer’s operational requirements?

Answer 22

Yes, dismissal based on operational requirements (e.g., financial loss) may be fair, but it must not be related to participation in a protected strike or discriminatory grounds.

Question 23

What is the LRA’s stance on dismissing employees to compel them to accept demands?

Answer 23

Dismissal to force an employee to accept an employer’s demands (e.g., during wage negotiations) is automatically unfair, unless the refusal constitutes insubordination.

Question 24

Is dismissal for refusing to comply with an employer’s reasonable and contractual instruction automatically unfair?

Answer 24

No, refusal to follow reasonable instructions that are part of the employment contract (e.g., doing specific tasks) may justify dismissal, as it is not automatically unfair.

Question 25

Can HIV-positive status be used as grounds for dismissal?

Answer 25

No, dismissal based on HIV-positive status is automatically unfair, even if it is not explicitly listed in the LRA but is covered under the Employment Equity Act.

Question 26

When is dismissal due to age considered fair?

Answer 26

Dismissal is fair if the employee has reached the normal or agreed retirement age for their position.

Question 27

How does victimization relate to automatically unfair dismissal?

Answer 27

Dismissal for taking action against the employer (e.g., referring a dispute or participating in legal proceedings) is considered automatically unfair.

Question 28

What constitutes a fair dismissal for misconduct?

Answer 28

There must be a valid reason (substantive fairness) and a fair procedure.

Question 29

Who carries the burden of proof in dismissal for misconduct?

Answer 29

the employer must prove that the dismissal was fair.

Question 30

What is the standard of proof required for proving misconduct?

Answer 30

The standard is “balance of probabilities,” not “beyond reasonable doubt” as in criminal cases.

Question 31

What factors should be considered in determining if dismissal for misconduct is unfair according to the Code of Good Practice?

Answer 31

Consider if:

• There was a rule governing conduct
• The rule was valid and reasonable
• The employee contravened the rule
• The rule was consistently applied
• Dismissal was an appropriate sanction

Question 32

Can misconduct outside the workplace be grounds for dismissal?

Answer 32

Yes, if the conduct outside the workplace impacts the workplace.

Question 33

What does “substantive fairness” mean in the context of dismissal for misconduct?

Answer 33

The employee must have contravened a valid and reasonable workplace rule, and dismissal must be an appropriate response. The employee must

Question 34

When is dismissal for a first offense generally considered inappropriate?

Answer 34

Except in cases of serious misconduct that makes continued employment intolerable.

Question 35

What are examples of serious misconduct justifying dismissal on the first offense?

Answer 35

Gross dishonesty, willful damage to property, assault, and endangering others’ safety.

Question 36

What is “gross dishonesty” in the workplace?

Answer 36

It includes theft or other forms of dishonesty that breach trust, often justifying dismissal even for a first offense.

Question 37

When can an employer dismiss an entire workforce without direct evidence of guilt?

Answer 37

In cases of constant stock loss where staff collaboration or protection of the guilty is suspected.

Question 38

How should an employer handle sexual harassment complaints?

Answer 38

The employer must investigate, offer the complainant options (informal or formal resolution), and maintain confidentiality.

Question 39

What is the employer’s responsibility in cases of employee intoxication?

Answer 39

The response depends on the employee’s duties; dismissal may be appropriate for safety-critical roles but warnings may be more suitable for others.

Question 40

What is procedural fairness in dismissal?

Answer 40

The employer must inform the employee of the allegations, give them an opportunity to respond, allow representation, and provide a fair hearing.

Question 41

What principle requires the employer to ensure fairness by hearing the employee’s side in a dismissal case?

Answer 41

The principle of audi alteram partem (hear the other side).

Question 42

Can polygraph tests be used as the sole evidence for dismissal?

Answer 42

No, polygraph results must be corroborated by other evidence.

Question 43

What does the Code of Good Conduct: Dismissal say about strikes that do not comply with requirements for a protected strike?

Answer 43

Participation in such strikes constitutes misconduct, but it does not always warrant dismissal. Substantive fairness must be determined by the facts, including the seriousness of the contravention, attempts to comply with the LRA, and whether the strike was in response to unjustified employer conduct.

Question 44

What must an employer do before dismissing employees involved in an unprotected strike?

Answer 44

The employer should contact a trade union official, issue a clear ultimatum, and give employees sufficient time to respond. The audi-rule (right to be heard) applies, and consultation with union representatives or strike leaders is required.

Question 45

What are the two types of incapacity that can lead to dismissal according to the Code of Good Practice?

Answer 45

Incapacity due to poor work performance and incapacity due to illness or injury.

Question 46

What guidelines apply to dismissals for poor performance during probation?

Answer 46

The employer must evaluate the employee, provide training or guidance, and allow the employee to make representations. Dismissal during or at the end of probation must follow a fair process, and reasons for dismissal may be less compelling than those after probation.

Question 47

When can an employee be dismissed for poor performance after probation?

Answer 47

Only if the employer has given appropriate evaluation, training, and guidance, and the employee still fails to meet the required standards after a reasonable time. There must be an inquiry into the reasons for poor performance.

Question 48

What factors must be considered when dismissing an employee for incapacity due to ill health or injury?

Answer 48

The employer must assess the extent of incapacity, consider alternatives to dismissal, and investigate the possibility of adapting work duties or providing alternative employment. Employees should be given an opportunity to state their case.

Question 49

Under what circumstances can dismissal due to incapacity be deemed fair?

Answer 49

If the employee’s absence is unreasonably long, or if permanent incapacity prevents the employee from fulfilling their duties, and no alternative employment or adaptation is possible.

Question 50

What defines a dismissal based on operational requirements (retrenchment)?

Answer 50

Dismissals based on economic, technological, or structural needs of the employer. The decision must be bona fide and make business sense. Extensive consultation with employees or unions is required.

Question 51

What is required of the employer when contemplating dismissals for operational reasons?

Answer 51

The employer must consult with the union or employees, provide written notice, disclose relevant information, and engage in meaningful consultations to reach consensus on measures to avoid or minimize dismissals.

Question 52

What must the employer disclose during consultations on operational requirements?

Answer 52

The reasons for dismissal, alternatives considered, number of employees affected, selection methods, severance pay, and possibilities of future re-employment.

Question 53

What criteria must be used to select employees for dismissal due to operational requirements?

Answer 53

Agreed-upon criteria between the consulting parties, or if no criteria have been agreed upon, criteria that are fair and objective.

Question 54

What does LIFO stand for in dismissal selection criteria?

Answer 54

Last In, First Out. Employees with the shortest period of service are retrenched first.

Question 55

Why might LIFO be unfair in certain cases?

Answer 55

LIFO can be unfair towards employees hired under affirmative action, as they tend to be more recently appointed.

Question 56

What was the ruling in CWIU v Johnson regarding dismissal criteria?

Answer 56

It was ruled unfair to dismiss women based on the ground that only men could perform the remaining work.

Question 57

What are some accepted criteria for dismissal besides LIFO?

Answer 57

Attendance records, efficiency, performance, and experience.

Question 58

What must happen if employees are selected for dismissal based on performance?

Answer 58

They must be given the opportunity to make representations.

Question 59

How could part-time work as a selection criterion for dismissal be discriminatory?

Answer 59

It may disproportionately affect women, leading to an automatically unfair dismissal due to indirect discrimination.

Question 60

What does Section 41 of the BCEA say about severance pay?

Answer 60

Employees dismissed for operational requirements must receive at least one week’s wage for each year worked.

Question 61

Under what condition is an employee not entitled to severance pay?

Answer 61

If the employee unreasonably refuses an offer of alternative employment.

Question 62

What does Section 189A of the LRA provide for employees in large-scale dismissals?

Answer 62

Employees can either refer the dispute to the Labour Court or go on strike to contest the dismissal.

Question 63

What are the four conditions for substantive fairness of a dismissal?

Answer 63

1. The dismissal addressed economic, technological, structural, or similar needs.
2. It was operationally justifiable on rational grounds.
3. Alternatives to dismissal were considered.
4. Selection criteria were fair and objective.

Question 64

When can employees strike or be locked out in large-scale dismissals?

Answer 64

If the employer contemplates dismissing at least 10% of the workforce or if dismissals in the past 12 months represent at least 10% of the workforce.

Question 65

What must happen before a dismissal dispute can be referred to the Labour Court?

Answer 65

The dispute must be referred to the CCMA or a council for conciliation. If conciliation fails, the case can be referred to the Labour Court.

Question 66

What are the possible remedies for unfair dismissal under Section 193 of the LRA?

Answer 66

The employer may be ordered to reinstate, re-employ the employee, or pay compensation.

Question 67

What is the difference between reinstatement and re-employment?

Answer 67

Reinstatement returns the employee to their previous position, while re-employment may involve different conditions.

Question 68

When is reinstatement or re-employment not required in unfair dismissal cases?

Answer 68

1. The employee doesn’t want reinstatement.
2. Continued employment would be intolerable.
3. Reinstatement is not practicable.
4. The dismissal is unfair only due to procedural issues.

Question 69

What is the maximum compensation for unfair dismissal due to procedural or substantive unfairness?

Answer 69

12 months’ remuneration.

Question 70

What is the maximum compensation for automatically unfair dismissal?

Answer 70

24 months’ remuneration.