CHAPTER 9-Automaitcally Unfair dismissal

The labour relation Act 66 of 1995 makes it clear that a dismissal can either be fair or
unfair or automatically unfair. S187 of the LRA provides that a dismissal is
automatically unfair if:
 In dismissing the employee, the employer acted contrary to s5 of the LRA
(which is concerned with freedom of association).
 The reason for the dismissal is a reason that falls into a list of particularly
despicable reasons listed in the LRA
DISMISSAL INFRINGINF AN EMPLOYEE’S RIGHT TO FREEDOM OF
ASSOCIATION
Thus an employer may not dismiss an employee for joining a trade union or for
participating in lawful trade union activities. For example if an employee wishes to
join a protected strike, they should be able to freely and without intimidation or fear of
losing their job. The right to freedom of association extends to senior managers as
well. A senior manager is first and foremost an employee. Should a senior manager
be dismissed because they choose to join a trade union such a dismissal will be
automatically unfair.
AUTOMATICALLY UNFAIR REASONS FOR DISMSSAL
The LRA provides that a dismissal is automatically unfair if it is for the following
reasons:
 That the employee was involved in a protected strike or protest action
 That the employee refused to do the work of a striking employee during a
protected strike or lockout unless necessary to protect life or health and
safety.
 To compel the employee to accept a demand in respect of any matter of
mutual interest between the employer and employee known as dismissal lock
out.
PARTICIPATION IN PROTECTED STRIKES AND PROTEST ACTION
The LRA makes it clear that employees enjoy protection against dismissal when they
participate in protected strikes. A protected strike is one that complies with certain
provisions of the LRA such as the provisions regulating the substantive and
procedural requirements that must be met by the trade union in order for the strike to
be protected.
Where the trade union does not follow the rules for a protected strike and
subsequently calls upon its member to strike the strike will be unprotected and
employees may be lawfully dismissed for their participation in the strike. However,
where the trade union follows all the rules and then calls a strike, the employees may
not be dismissed for their participation in the strike.
REFUSAL TO DO WORK OF AN EMPLOYEE WHO IS ON STRIKE
During a strike, an employer might request non-striking employees to do work that
the striking employees would normally do. However, an employer is only entitled to
expect non-striking employees to do the strikers work if the work is necessary to
prevent actual danger to the life, personal safety or health of other people at the
workplace.
DISMISSAL LOCK-OUTS
An employer may wish to change an employee’s condition of service e.g. it may want
to introduce a new shift system that applies to certain categories of employees. If the
employees are not agreeable, the employer may want to force the employees to
accept the proposal regarding the new shift system. It is clear that such a change in
conditions of service concerns a matter of mutual interest between employer and
employee. If the employer uses its industrial weapon-namely the lock out- to try to
compel the employees to agree to its demand and then dismisses the employees if
they do not agree to the demand, this is unknown as a dismissal locj out and is
automatically unfair. In Fry’s v National Union of Mineworkers SA PAGE 3 CHECK
COURT FINDING
The 2015 amendment to s187(1)(c) of the LRA now states that a dismissal will be
automatically unfair if the reason for the dismissal is the refusal of employees to
accept a demand in relation to a matter of mutual interest and no longer about
compelling employee to accepts a demand in relation to a matter of mutual interest.
For a dismissal to be automatically unfair it is therefore no longer a requirement that
the reason for the dismissal is linked to the employer’s intention to compel
employees that the reason for the dismissal is linked to the employer’s intention to
compel employees to accept the demand, the amendment has the effect of nullifying
or reversing the Fry’s Metal decision.
EXERCISE OF EMPLOYEE RIGHTS OR PARTICIPATION IN PROCEEDINGS
This LRA has numerous provisions granting employees’ rights, it is automatically
unfair to dismiss an employee for exercising any these rights e.g. an employee
enjoys certain rights to freedom of association. In addition, if an employee wishes to
approach the CCMA or the department of labour to lodge a complaint about alleged
unfair or even illegal behavior by an employer, the employee should be able to do so
without any fear of limitation or threat of dismissal.
PREGNANCY
Note that the LRA’s provision on automatically unfair dismissal includes dismissal
linked to any reason related to her pregnancy. This provision could cover the
situation where an employee had given birth and had already exhausted her
maternity benefits in terms of the BCEA 75 OF 1997.
UNFAIR DESICRIMINATION
If the reason for a dismissal is that the employer unfairly discriminated against an
employee, the dismissal is automatically unfair.
TRANSFER OF CONTRACT OF EMPLOYEMENT
It may happen that an employer (old employer) transfers a whole or part of its
business to another employer (new employer). In this case, the LRA provides that
the contracts of employment of the employees pass automatically to the new
employer. Where the terms and conditions of employment are substantially less
favorable under the new employer, the employees may resign and claim constructive
dismissal.
WHISTLE BLOWING
This protection is incorporated into the LRA and employees who are dismissed as a
result of whistle blowing may under certain circumstances claim that the dismissal is
automatically unfair. Where an employee makes a protected disclosure in good faith
and subsequently suffers the occupational detriment of dismissal then such a
dismissal is deemed automatically unfair.
REMEDIES FOR UNFAIR AUTOMATICALLY UNFAIR DISMISSAL
An employee who believes that his or her dismissal was automatically unfair has to
refer the dispute to the CCMA or a bargaining council within 30 days of the date of
the alleged unfair dismissal in order to conciliate the dispute. The CCMA or the
bargaining council then has 30 days from the date of referral to conciliate the
dispute. If the dispute remains unresolved after conciliation has failed then the
commissioner has to issue a certificate of non-resolution, indicating that the dispute
remains unresolved and stating that the parties are free to refer the matter to the
labour court.
AUTOMATICALLY UNFAIR DISMISSAL
Amounts to infringement of fundamental and basic human rights and the employer
therefore cannot raise a defence against such a claim except in context of certain
defined cases of fair discrimination.

CHAPTER 10-DISMISSAL FOR MISCONDUCT