DISCIPLINE AND

DISMISSAL

PART C: UNIT 8
AUTOMATICALLY UNFAIR DISMISSAL
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 AUTOMATICALLY UNFAIR DISMISSALS

• The Act has listed certain dismissals as automatically unfair

dismissals. A dismissal is automatically unfair if the reason for the
dismissal is one that amounts to an infringement of the
fundamental rights of employees, or those grounds listed in section
187 of the Act.
• The Act provides for three categories of legitimate dismissals,
namely:
• misconduct,
• incapacity and
• operational requirements dismissals.

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 S187 (1): Automatically unfair Dismissals

•
(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary
to section 55 or, if the person for the dismissal is:-
(a) that the employee participated in or supported, or indicated an intention to participate in
or support, a strike or protest action that complies with the provisions of Chapter IV;
(b) that the employee refused, or indicated an intention to refuse, to do any work normally
done by an employee who at the time was taking part in a strike that complies with the
provisions of Chapter V or was locked out, unless that work is necessary to prevent an actual
danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect of any matter of mutual interest
between the employer and employee;
(d) that the employee took action, or indicated an intention to take action, against the
employer by:-
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;

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 (e) the employee’s pregnancy, intended pregnancy, or any reason
related to her pregnancy;
(f) that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including, but not
limited to race, gender, sex, ethnic or social origin, colour sexual
orientation, age, disability, religion, conscience, belief, political opinion,
culture, language, marital status or family responsibility.
(2) Despite subsection (1)(f):-
(a) a dismissal may be fair if the reason for dismissal is based on an
inherent requirement of the job;
(b) a dismissal based on age is fair if the employee has reached the
normal or agreed retirement age for persons employed in that
capacity. 4
 Dismissal contrary to s 5
• Section 5 confers on employees a right to freedom of association, to belong to
workplace forums etc. A dismissal will be automatically unfair if an employer
dismisses an employee and the reason for the dismissal is related to the employee’s
trade union (or workplace forum) membership or activities.
• Employees and job applicants have the right to form, to join and participate in the
lawful activities of a trade union.
• The LRA protects the employees from dismissal and victimization because of their
trade union activities.
• All the employees including senior managers, enjoy the right to freedom of
association. But real confict of interest may arise if a senior manager is also an
ofice-bearer or representative of a trade union or a staf association. The reason
being that the senior manager may have access to the employer’s confdential
information, information that may infuence collective bargaining between the
employer and the union.

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• An example In Independent Municipal & Allied Trade Union &
others v Rusternburg Transitional Council (2000) 21 ILJ 377
(LC) , the LC suggested that although a senior managerial employees
have the right to hold ofice in trade unions, they may be dismissed if,
when they are exercising their rights, they breach their duty of
fdelity towards their employers.
• The courts have given a wide meaning to s 187 (1) (d) which
precludes dismissing employees for ‘exercising any right’ or
participating in any proceedings’ in terms of the LRA. See NUPSAW
obo Mani v NLB (2014) 35 ILJ 1885 (CC).
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 Strike Dismissal
• The LRA distinguishes between protected and unprotected strikes,
lockouts and protest action.
• Employees who take part in a protected strike enjoy certain legal
protections, if the employee is dismissed because he or she
participated in a protected strike, the dismissal will be automatically
unfair.
• Criminal activity is never condoned, any assaults on co-employees or
damage to property may justify dismissal for misconduct

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• In Early Bird Farms (Pty) Ltd v FAWU & others [2004] 7 BLLR 628 (LAC), the
applicants were dismissed for participating in a unprotected strike and the LAC had
to decide in the frst instance whether the strike was protected or not and to do the
court has to decide whether the strike was a primary or a secondary. The court found
out that the workers on a protected strike when they were dismissed. The court held
that the dismissal of the workers was automatically unfair and the appeal by the
employer was dismissed.
• Section 187(1) (b) provides that a dismissal will be automatically unfair if the reason
for the dismissal is that the employee refused, or indicated an intention to refuse, to
do any work normally done by an employee who at the time was taking part in a
protected strike or was locked out unless that work is necessary to prevent an actual
danger to life, personal safety and health.

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• While the LRA does not prevent the employers from using
replacement labour to keep production going in a protected strike,
the employer may not force employees who are not on strike to do the
work of strikers.
• An employers refusal to comply with the employer’s instructions to do
the work of striking employee may constitute insubordination.

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Dismissal in support of an employers
demand/ lock-out dismissal
• Section 187 provides as follows: “(1) A dismissal is automatically unfair if the reason for the dismissal is-
• © to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and the
employee;”
• Section 187 clearly states that a dismissal will be automatically unfair if the reason for the dismissal is to compel an employee to
accept such a condition of employment.
• This has been changed to make the prohibited reason a simple refusal by employees to accept a demand relating to such matters
• Now amended s187 (1) © ‘a refusal by employees to accept a demand in respect of any matter of mutual interest
between them and their employer’.
• A distinction is drawn between a refusal to comply and gross insubordination
• If an employee refuses to do something he or she is contractually obliged to do, this may be insubordination. If, however, the
employee refuses to accept a unilateral amendment to a condition of employment, such as wage reduction or increase in
overtime, and is subsequently dismissed – such dismissal may be a ‘dismissal lock-out’ and would, in consequence, be
automatically unfair – [Basson Essential Labour Law]
• Although this provision is apparently aimed at preventing employers from resorting to ‘dismissal lockouts’ this provision has
potentially far-reaching implications for disciplinary action and dismissal, particularly where insubordination is alleged, or the
employer wishes to change its employees' terms and conditions of employment to reduce labour costs. [Grogan workplace Law ]

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• An employer may dismiss an employee who refused to accept a demand by an employer,
and claim that changes are being brought by operational requirements of the company.
But the question still remains, can the employer justify his action
• ECCAWUSA & Other v Shoprite Checkers, OK Bazaars Krugersdorp, (2000) 21 ILJ
1347 (LC).
• As it was faced with fnancial dificulties the company started consulting with its workers
about the matter. Agreement was reached that both parties will avoid job loses. The
company started introducing shift system and the workers refused to accept them. The
employer retrenched the workers.
• The Court held that: “-care should be taken to equate a bona fde retrenchment exercise
which is aimed at avoiding job losses, but …at amending terms and conditions to suit the
operational requirements of the employer…[W]here the amendment of terms and
conditions of employment is profered by the employer as an alternative based on the
employers’ operational requirements, the employer will be justifed in dismissing employee
who refuse to accept the alternative on ofer.

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• An employer may dismiss an employee who refused to accept a demand by an employer, and claim
that changes are being brought by operational requirements of the company. But the question still
remains, can the employer justify his action
• Prior to the amendment the courts issued conficting judgments on whether it is permissible to
dismiss employees who refused to accept changes to their terms and conditions of employment.
• In ECCAWUSA & others v Shoprite Cherckers t/a OK Bazaars Krugersdorp, (2000) 21 ILJ
1347 (LC).
• As it was faced with fnancial dificulties the company started consulting with its workers about the
matter. Agreement was reached that both parties will avoid job loses. The company started
introducing shift system and the workers refused to accept them. The employer retrenched the
workers.
• The Court held that: “-care should be taken to equate a bona fde retrenchment exercise which is
aimed at avoiding job losses, but …at amending terms and conditions to suit the operational
requirements of the employer…[W]here the amendment of terms and conditions of employment is
profered by the employer as an alternative based on the employers’ operational requirements, the
employer will be justifed in dismissing employee who refuse to accept the alternative on ofer.”

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• The LC adopted a diferent approach in other cases see See NUMSA v FRY’s Metal (2001)
22 ILJ ILJ 701 (LC). In NCBAWU v Hernic Premier Refractories (Pty) Ltd, (2003) 1
BLLR 50 (LC)
• The Court stated that:
• “It is clear from the provisions of s 187(1) © of the Act that an employer is prevented from
dismissing an employee who refuses to accept a demand in respect of any matter of mutual
interest. Where an employee is dismissed, such a dismissal will be automatically unfair
dismissal. On a balance of probabilities, the true cause of the dismissal of the individual
applicants was their refusal to agree to the new terms and conditions of employment that
entailed the signing of a new employment contract and the abolition of certain benefts such
as winter jackets, canteen subsidies, transport allowances, bursary schemes, etc. The
dismissals were therefore automatically unfair. It was argued that the individual applicants
should not be reinstated since contract workers replaced them. I do not agree. The
respondent brought it upon itself when I dismissed the individual applicants under the guise
of a retrenchment. There is no reason why the individual applicants should not be reinstated
in their previous positions.”

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• The debate on this issue came diferently on appeal in Fry’s Metals (Pty) Ltd, [2003] 2 BLLR
140 (LAC).
• In this case the employees were working on a 3-shift, 8hour system. The employer called a
meeting and proposed to change the shift system to 2-shift; 12-hour system and the union
rejected the proposal. The company threatened that those employees who were not
prepared to accept the proposed changes may be retrenched. NUMSA brought an urgent
application to the Labour Court seeking an order interdicting Fry’s Metal from dismissing
the employees; and implementing the proposed changes in the workplace. The Labour court
granted the interdict.
• Fry’s Metals brought an appeal to the Labour Appeal Court. The issue before the Court was
whether the company was attempting to exercise its right to dismiss for operational
requirements as opposed to dismissing employees to compel them to agree to a demand on a
matter of mutual interest. The LAC held that an employer is, by implication, precluded by
section 187(1)© from dismissing an employee or a group of employees if the reason for
doing so is to compel the employee to accept a demand in respect of a matter of mutual
interest

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• The Court held further that:
• “ in order to fall within the ambit of s 187(1) (c ) of the Act, a dismissal must have
as its purpose the compulsion of the employees concerned to accept a demand
in respect of a mater of mutual interest between employer and employee. If the
dismissal is not for that purpose, it falls outside the ambit of s 187(1) (c).
• A dismissal that is fnal cannot serve the purpose of compelling the dismissed
employee to accept a demand in respect of a matter of mutual interest between
employer and employee because, after he has been dismissed no employment
relationship remains between the two. The court concluded that the dismissal
was fnal and was designed to compel the employees to accept the proposed
changes so as to continue employing them or so as to have the dismissal
withdrawn upon acceptance by the employees of the proposed changes.”

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• However, if the employees change their minds, they might be
considered for re-employment as happened.
• The issue took another stance in CWIU v Algorax [2003] 11 BLLR
1081 (LAC).
• Which was decided immediately after Fry’s Metals case. Half of
Algorax’s staf worked the day shift and the other half worked night
shift. The company employed contract workers to keep production
going over the weekends. The employer decided to change the shift
system by introducing a continuous three shift system. The
employees refused to work night shifts. The company persuaded
them but they refused. Eventually, the company told them that if they
refused to work the night and weekend shifts, they would be
retrenched. And they were dismissed. 16
• Unlike Fry’s Metals, the employer ofered to re-employ the dismissed workers if they were prepared to work the new shift system and kept
that ofer opened until the matter reached the Labour Court.
• The workers claimed that they were automatically unfairly dismissed.
• The Labour Court held that the dismissal was not automatically unfair but that it had not followed a fair procedure in terms of s 189 of the
Act and therefore, awarded compensation.
• On appeal the workers persistent with their claim that their dismissals were automatically unfair, claimed re-statement. The Court held that
the conditional ofer of reinstatement brought the dismissal within the ambit of section 187(1)( c ) of the LRA, that is the company dismissed
the workers for the purpose of compelling them to comply with its demand that they work the new shift system and ordered the
reinstatement of the employees.
• The amendment to s 187 (1) © was an attempt to overcome the efect of Fry metals case.
• The Courts tried to deal with this impact in the case of NUMSA v Aveng Trident Steel (a division of Aveng Africa) (2018) 39 ILJ 1625
(LC) -
• workers were retrenched after refusing to apply for positions in a new structure. The Court held that the employees were
fairly dismissed.
• On appeal ( 2019 40 ILJ 2024 ) (LAC) the LAC held that a dismissal of an employee for refusing to sign a contract containing a
clause to which he objected does not constitute an automatically unfair dismissal. Section 187 does not preclude an
employer from dismissing for operational requirements if the refusal of the demand genuinely impacts on its operations.
• The Union appealed to the CC and the CC held the LAC was correct in its decision it endorsed that s187(1) © does not prohibit an employer
from dismissing employees for rejecting a demand that impacts on its operational requirements.

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 Section 187 (1) (d)
• d) that the employee took action, or indicated an intention to take action, against the
employer by:-
• (i) exercising any right conferred by this Act; or
• (ii) participating in any proceedings in terms of this Act;
• The Court have given a wide meaning of section 187 (1) (d). In NUMSAW obo Mani v
NLB (2014) 35 ILJ 1885 (CC), the CC split over the meaning of the ‘lawful activities’ in
which the union members are entitled to take part by virtue of ss 4(2)(a) and 5 (2)
©(iii) of the LRA.
• The issue in this case was whether the employees had taken part in lawful activities
when they sent a petition to the Lotto Board of directors declaring that they could no
longer work with the CEO in the same building and suggesting that the board should
arrange for his resignation, then leaked the petition to the newspaper.
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 NUMSAW obo Mani v NLB (2014)
35 ILJ 1885 (CC),
• The case concerned the dismissal of ten employees of the National
Lotteries Board (Board) who are members of the National Union of
Public Service and Allied Workers (NUPSAW).
• NUPSAW, on behalf of the dismissed employees, challenged the
dismissals on the ground that they were automatically unfair under
the Labour Relations Act (Act), because the employees’ conduct
constituted participation in the lawful activities of the union. In the
alternative, NUPSAW submitted that even if the dismissals were not
automatically unfair, they were nevertheless substantively unfair
under the Act.
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• During the conciliation processes, the employees wrote a letter containing various
allegations against the CEO. This letter was leaked to a national newspaper.
Subsequently, the employees addressed a petition to the Board making further
allegations against the CEO also passing a vote of “no confdence” in him. The
conciliation process was not resolved.
• The employer warned that if the petition was not withdrawn it would institute
disciplinary proceedings.
• When some employees refused to withdraw the petition, the employer instituted
disciplinary proceedings. During this process, the employees were ofered another
opportunity to withdraw their names from the petition and be issued with written
warnings. The employees chose not to withdraw their names and were subsequently
dismissed.
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• The employees unsuccessfully challenged their dismissals in the Labour Court. The Court found that,
although a union may vigorously pursue the rights of its members, the right to freedom of expression does
not aford a union and its members the right to engage, without consequences, in acts of gross
insubordination. The employees were also unsuccessful in their appeal to the Supreme Court of Appeal,
which unanimously found that the cause of their dismissal was the ofensive content they had
communicated in the petition, not the act of petitioning itself.
• The Constitutional Court overturned the judgment of the Supreme Court of Appeal. The majority
judgment, written by Zondo J and concurred in by Moseneke ACJ, Jafta J, Madlanga J, Mhlantla AJ, and
Nkabinde J, held that the statements made by the employees were in pursuit of the ongoing statutory-
conciliation process, and in the exercise of their rights to participate in collective bargaining. Zondo J
found that the employees’ conduct constituted lawful activities of a union. Their dismissals were
accordingly automatically unfair. Further, the failure to utilise the statutory dispute-resolution
mechanisms in the Act or to table their grievances internally did not render them guilty of
insubordination. In the result, leave to appeal was granted, the appeal was upheld and the Board was
ordered to reinstate the employees.

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• In a separate judgment, Dambuza AJ concurred in the order of Zondo J but for diferent reasons.
Whilst she agreed that the dismissals were unfair, she disagreed that they were automatically unfair.
She held that petitioning the employer to dismiss another employee was not a lawful union activity
protected under the Act. Nevertheless, viewed in the context of the Board’s unwillingness to engage
in good faith negotiations, coupled with its disregard for the conciliation process that was underway,
the employees’ threat to defy authority did not constitute insubordination and disrespectful
behaviour. The dismissals were accordingly substantively unfair under the Act.
• The minority judgment written by Froneman J, and concurred in by Skweyiya ADCJ and Cameron J,
held that the employees’ petition and the publication of the union letter objectively amounted to
insubordination and bringing the CEO and the Board into disrepute. The dismissals were therefore
not automatically unfair. Regarding the alternative claim, the minority held that although unions and
employees may exercise their rights to petition and freedom of expression parallel to processes
under the Act, these rights cannot be exercised in a way that undermines the Act’s processes.
Froneman J would have granted leave to appeal but dismissed the appeal.

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• KROUKAM V SA AIRLINK PTY LTD (elibraries.co.za);
• National Union of Public Service & Allied Workers obo Man
i and Others v National Lotteries Board (CCT 75/13) [2014
] ZACC 10; 2014 (3) SA 544 (CC); 2014 (6) BCLR 663 (CC);
[2014] 7 BLLR 621 (CC); (2014) 35 ILJ 1885 (CC) (10 April
2014) (safii.org)

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 Victimization
• S 187(1) (d) protects employees who may be victimized for taking legal action against
their employers when such action is allowed in terms of the provisions of the LRA.
• An employer is not permitted to use it stronger position, and the employee’s fear of
losing his or her job, to intimidate into not taking legal action against the employer.
• In Chemical Energy Printing Wood & allied Workers Union & another v Glass
& Aluminium 2000 CC (2002) 23 ILJ 695 (LAC), a shop steward resigned after
having an argument with the employer during disciplinary hearing.
• The LAC held that there is a subtle diference between the employee’s ‘jumping’ and
‘being pushed’. The court accepted that this was a constructive dismissal and that it
was also automatically unfair since the employee was dismissed for exercising a right
conferred by section 187(1) (d) (i) of the LRA.

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 Pregnancy 187 (e)
• A dismissal is automatically unfair if the reason is pregnancy.
(Woolworths case)
• In other cases, employers are not precluded from dismissing pregnant
emplioyees for operational requirements, provided that the court can
be persuaded that there was indeed a valid economic or related
reason for dismissal.
• The purpose of this section is to ensure that women are not are not
disadvantaged by virtue of being women and child-bearing member.
• A female employee is entitled to at least four consecutive months'
maternity leave, and may commence maternity leave-
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 S 187 (1) (f) Unfair
discrimination
• A dismissal is automatically unfair if the reason for the dismissal is that the
employer unfairly discriminated against an employee.
• This provision is read in conjunction with the general prohibition against
unfair discrimination in s 6 of EEA.
• The list is not exhaustive, the court recognised claims based on analogous
grounds eg. HIV Status or citizenship.
• Allpass v Mooikloof Estates 2011 (LC), the employer submitted that the
dismissal was not due to the employees HIV status but the failure to disclose
at pre-appointment interview. This defense was rejected. See also Hofmaan
Case.

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 Transfer contemplated by s197
• Automatically unfair if reasons for dismissal is a transfer
or related to transfer in s197 & 197A
• See Velde v Business and Design Software

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 Whistleblowing
• Automatically unfair if the dismissal is in breach of PDA 26 of
2000.
• The Protected Disclosures Act of 2000 allows employees to make protected
disclosures about corruption and other irregularities in the workplace without
fear of being to an unfair treatment on account of discolosure. An employee
may not be dismissed for making disclusures in terms of the Act.
• Not every disclosure is protected. The act a disclosure is protected if it
discloses forms of criminal or other misconduct and it is made in good faith.
• Parliament of RSA v Charlton [2010] 10 BLLR 1024 (LAC); Pedziski v Andisa
Services (Pty) [2006] 2 BLLR 184 (LC).
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 REQUIREMENTS FOR A FAIR
DISMISSAL: s 188 of the LRA
• Section 188 of LRA deals with the issue of fairness in a
dismissal and says:
• A dismissal that is not automatically unfair, is unfair if the employer
fails to prove:
that the reason for dismissal is a fair reason:
(i) related to the employee's conduct or capacity; or
(ii)based on the employer's operational requirements; and
• that the dismissal was afected in accordance with a fair procedure.

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 Fair reasons for dismissal-
• 1) A dismissal is unfair if it is not afected for a fair reason and in
accordance with a fair procedure, even if it complies with any notice
period in a contract of employment or in legislation governing
employment. Whether or not a dismissal is for a fair reason is
determined by the facts of the case, and the appropriateness of
dismissal as a penalty. Whether or not the procedure is fair is
determined by referring to the guidelines set out below.
• (2) This Act recognizes three grounds on which a termination of
employment might be legitimate. These are: the conduct of the
employee, the capacity of the employee, and the operational
requirements of the employer's business.

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• NO dismissal can be for a valid reason unless it is related to
conduct or capacity or the employers' operational requirements.
• Permissible reasons for dismissal is important because diferent
requirements are attached to each form of dismissal.
• What is permissible is that reason must be a fair or a justifable
reason.
• When assessing the whether reasons are justifable one has to look
at surrounding circumstances of a particular case and guidelines
set by our courts and the code of good practice issued.
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 Fair Procedure
Any person considering whether or not the reason for dismissal is a
fair reason or whether or not the dismissal was efected in
accordance with a fair procedure must take into account any
relevant code of good practice issued in terms of this Act.

• Whilst section 188(1) sets the ground rules, it

gives employers little practical guidance on how
to efect a dismissal that is not in breach of the
LRA.
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• Inevitably, employers must ask themselves two questions; is the decision to dismiss based
on a fair reason and (after grappling with that question) is the dismissal process being
carried out fairly? But what exactly is fair? Fortunately, employers are able to refer to the
Code of Good Practice: Dismissal which provides guidance on:
• implementing disciplinary procedures prior to dismissal;
• what actions may constitute employee misconduct;
• conducting a disciplinary hearing;
• keeping disciplinary records;
• dismissing a striking employee;
• dismissing a probationary employee;
• dismissing an employee for poor performance; and
• dismissing an employee for ill health or injury.

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 Codes of Good practice
• 1) This code of good practice deals with some of the key aspects of dismissals
• for reasons related to conduct and capacity. It is intentionally general. Each case
• is unique, and departures from the norms established by this Code may be
• justifed in proper circumstances. For example, the number of employees
• employed in an establishment may warrant a diferent approach.
• (2) This Act emphasises the primacy of collective agreements. This Code is not
• intended as a substitute for disciplinary codes and procedures where these are
• the subject of collective agreements, or the outcome of joint decision-making by an
employer and a workplace forum.
• (3) The key principle in this Code is that employers and employees should treat
• one another with mutual respect. A premium is placed on both employment
• justice and the eficient operation of business. While employees should be
• protected from arbitrary action, employers are entitled to satisfactory conduct and work
performance from their employees.

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 S 190 Date of dismissal
• (1) The date of dismissal is the earlier of-
• (a) the date on which the contract of employment terminated; or
• (b) the date on which the employee left the service of the employer.
• (2) Despite subsection (i)-
• (a) if an employer has ofered to renew on less favourable terms, or has failed to renew,
a fxed-term contract of employment, the date of dismissal is the date on which the
employer ofered the less favourable terms or the date the employer notifed the
employee of the intention not to renew the contract;
• (b) if the employer refused to allow an employee to resume work, the date of dismissal
is the date on which the employer frst refused to allow the employee to resume work;
• (c) if an employer refused to reinstate or re-employ the employee, the date of dismissal
is the date on which the employer frst refused to reinstate or re-employ that employee.

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