AUTOMATICALLY

UNFAIR
DISMISSALS

STUDY UNIT 5.2

 2

STUDY OUTCOMES

1. Identify the different categories of automatically unfair dismissal

2. Distinguish automatically unfair dismissals from those that occur
for permissible reasons
3. Discuss the consequences of these dismissals
4. Explain the onus of proof in cases of automatically unfair
dismissal
5. Explain the “real and proximate cause” test and apply
 3

CASE LAW – DISMISSALS

(NOTE: as a LLAW student you are not expected to learn or quote cases in assessments, however, we look through (go over) these
cases to better understand the content of the work as it is difficult for you to learn the work without incorporating some of the cases)

1) SACWU v Afrox 1999 20 ILJ 1718 (LAC)

2) ECCAWUSA v Shoprite Checkers t/a OK Bazaars Krugersdorp
2000 21 ILJ 1347 (LC)
3) National Union of Metalworkers of SA v Fry’s Metal 2001 22 ILJ
701 (LC)
4) Fry’s Metal v NUMSA 2003 24 ILJ 133 (LAC)
5) NUMSA v Fry's Metal 2005 26 ILJ 689 (SCA)
6) Solidarity obo Wehncke v Surf4cars 2011 10 BLLR 1007 (LC)
7) Jabari v Telkom SA 2006 10 BLLR 924 (LC)
8) Kroukamp v SA Airlink 2005 12 BLLR 1172 (LAC)
9) CWIU v Johnson & Johnson 1997 9 BLLR 1187(LC)
10) FAWU v Rainbow Chicken Farms 2000 21 ILJ 615 (LC)
11) Department of Correctional Services v POPCRU 2011 32 ILJ
2629 (LAC)
 4

Introduction
1. Section187 LRA provide list of absolute impermissible reasons for dismissal

2. Victims will be reinstated – unless compensation is preferred (24 months’ salary)

3. ONUS
Kroukamp v SA Airlink; De Beer v SA Export Connection;
POPCRU v Department of Correctional Services

4. Dominant or proximate cause

SACWU v Afrox 1999 20 ILJ 1718 (LAC)
 5

Dismissal contrary to section 5

1. Section 187(1)
2. S 5 – "There may not be discriminated against anyone for exercising any of their rights ito
the LRA" for ex. the right to freedom of association (trade union)
3. Ex. Legal activities under the control of trade unions – attending meetings and disclosure of
relevant information
4. May not dismiss on these grounds
5. Read together with section 187(1)(d)
6. FAWU v Rainbow Chicken Farms 2000 21 ILJ 615 (LC); CEPPWAWU v Glass and Aluminum
2000 CC [2002]
 6

Strike dismissals
1. Section 187(1)(a) & (b)
2. Protected; unprotected – section 67(4) of the LRA
3. Employees not dismissed due to protected strike
4. Non-members of union can also participate in strike
5. Dismissal : misconduct -operational requirements
6. SA Chemical Workers Union v Afrox – 'real' and 'proximate' cause (factual and legal causation)
7. The true reason for dismissal should be determined with certainty
8. Protection extended to non-strikers during protected strike: Non-strikers shouldn’t have to do the
other’s work – may not dismiss when they refuse (unless?)
 7

Dismissal in support of
employer’s demand
1. Section 187(1)(c)
2. Employer may not dismiss employee for refusing to comply with employer's demand
(during negotiations)
3. Can the employer effect unilateral changes if the employees refuse to accept the changes
he proposes?
4. May the employer dismiss such an employee?
5. Yes, but only if there is a true operational reason involved – dismissal should not be made
conditional, but final
6. See judgments of Shoprite Checkers, the Fry's Metal-cases (Court a quo and Appeals) and
Solidarity obo Wehncke v Surf4cars; CWIU v Algorax 2003
 8

Victimisation (for exercising rights)

1. Section 187(1)(d)
2. Employer may not dismiss employee because employee demands his rights in
the workplace and took action against the employer in the
exercise/enforcement of these rights
3. Jabari v Telkom SA
4. Employee carries onus of proof to adduce doubt on the reason of the employer
5. Kroukamp v SA Airlink
 9

Pregnancy
1. Section 187(1)(e)

2. Female employee not dismissed due to pregnancy or maternity leave

3. Dismissal : operational requirements

4. Requirement must be legitimate – real economic detriment suffered

5. Woman protected for other reasons related to the pregnancy or birth thereafter (will depend on the facts
at hand)

6. Wardlaw v Supreme Mouldings [2004] 6 BLLR 613 (LC); Mashava v Cuzen & Woods Attorneys (2000) 21
ILJ 402 (LC) and Ekhamanzi Springs v Mnoyima [2014] 8 BLLR 737 (LAC)
 10

Discriminatory dismissal
1. Section 187(1)(f)

2. Employer may have no discriminatory ground in mind for the dismissal of an employee, ex. race, sex, religion, age, etc.

3. FAWU v Rainbow Chicken Farms

4. CWIU v Johnson & Johnson

5. DEFENCE: Fair differentiation are not forbidden – ‘inherent requirement of the job’ – (S 187(2)(a))

6. Distinction between employees for a valid reason – due to that characteristic, the person is NOT ABLE to perform the job

7. Ex. Department of Correctional Services v POPCRU

8. DEFENCE: S 187(2)(b) – Retirement age

Rubin Sportswear v SACTWU [2004] 10 BLLR 986 (LC)

9. Employee must prove that discrimination took place

 11

Section 197 dismissals

1. Section 187(1)(g)
2. Employees’ contracts are transferred to the new employer
3. Employees must not be dismissed for reason directly related to the transfer
4. Old employer dismiss employees to make the business more appealing – impermissible
5. Redundancy – permissible
6. Employer(s) and employees can agree
7. Van Velde v Business and Design Software [2006] BLLR 995 (LC)
 12

“Whistleblowers”
1. Section 187(1)(h)
2. Disclosure of information regarding illegal or suspect conduct of employer – Protected
Disclosures Act (amended)
3. Employee must have bona fide believe that the information is true
4. Employee should not be aware (or could reasonably have been expected to be aware) that
the information is not true
5. Employee followed internal procedure
6. Disclosure towards a legal advisor, executive council of the province or another employee
7. Disclosure not for personal gain
 13

Defences

1. Dismissal was for ‘legitimate’ reason

2. Employer proves that reason alleged by employee was not the dominant reason
3. True reason was one of the 3 grounds for fair dismissal (misconduct, incapacity
or operational requirements)
4. Court must determine if last mentioned ground was the dominant reason
 14

Next Lecture

Study Unit 5.3 – misconduct as a fair reason for

dismissal

See study guide for relevant reading under unit 5.3