IURI 222

Study Unit 5.2

Automatic unfair dismissal

 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 “dominant or proximate cause” test and apply
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. CWIU v Algorax 3003 11 BLLR 1081 (LAC)
7. Kroukamp v SA Airlink 2005 12 BLLR 1172 (LAC)
8. CWIU v Johnson & Johnson 1997 9 BLLR 1187(LC)
9. FAWU v Rainbow Chicken Farms 2000 21 ILJ 615 (LC)
10. Department of Correctional Services v POPCRU 2011 32 ILJ 2629 (LAC)
 Introduction
1. S 187 LRA provide list of absolute impermissible
reasons for dismissal
2. See Basson p. 152 and further
3. Victims will be reinstated – unless compensation is
preferred (24 months’ salary)
 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
 Strike dismissals
1. Section 187(1)(a) & (b)
2. Protected ; unprotected
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?)
 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. Dismissal may not be used as a weapon
4. Are there times here when employee may be dismissed?
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 CWIU v Algorax
7. Wording of subsection changed in 2014
 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. Employee carries onus of proof to adduce doubt on
the reason of the employer
4. Kroukam v SA Airlink
 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)
 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 (religion)
4. CWIU v Johnson & Johnson (sex)
5. 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
(culture)
8. S 187(2)(b) – Retirement age
9. Employee must prove that discrimination took place
 S 197 dismissals
1. Section 187(1)(g)
2. Employees’ contracts are transferred to the new employer
3. Employees not 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
 “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. Grieve v Denel
5. Employee should not be aware (or could reasonably have been
expected to be aware) that the information is not true
6. Employee followed internal procedure
7. Disclosure towards a legal advisor, executive council of the
province or another employee
8. CWU v Mobile Telephone Networks
9. Disclosure not for personal gain
 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
4. Court must determine if last mentioned ground was
the dominant reason