Unfair dismissal

 preliminary topics
Chapter 9
WEEK 5
 Intro

• Before 1980 – no protect if ER gave Required notice, EE had no remedy

• ILO Convention 158 - Valid reason
• There must be an employer-employee relationship & there must be a dismissal (s
186)
• Ch VIII - LRA s 185 – every employee has the right not to be unfairly dismissed
• Lawful dismissal v Unfair dismissal (substantive and procedural fairness)
• Common law v Statutory law (common law slides -Dismissal with notice,
Dismissal without notice (summary dismissal) – only for serious misconduct
• Employee must establish the dismissal “some overt act by the er that is the
proximate cause for the termination of the contract” i.e. if he says I should start
looking for a new job and I just leave and never come back, the ER didn’t
dismiss, the EE just walked away.
• Fairness – established by the employer
• Section 186 (1) (a) – (f): Ee terminated with or without notice
 Dismissals
“Dismissal” S186 means that-
a) an employer has terminated employment with or without
notice;

b) an employee employed in terms of a fixed term contract of

employment reasonably expected the employer --to renew a
fixed term contract of employment on the same or similar
terms but the employer offered to renew it on less favourable
terms, or did not renew it; or

c) to retain the employee in employment on an indefinite basis

but otherwise on the same or similar terms as the fixed term
contract, but the employer offered to retain the employee on
less favourable terms, or did not offer to retain the employee.
 Dismissals continued…
a) an employer refused to allow an employee to resume work after she-took
maternity leave in terms of any law, collective agreement or her contract
of employment; or

b) an employer who dismissed a number of employees for the same or similar

reasons has offered to re-employ one or more of them but has refused to
re-employ another; or

c) an employee terminated employment with or without notice because the

employer made continued employment intolerable for the employee; or

d) an employee terminated employment with or without notice because the

new employer, after a transfer in terms of section 197 or section 197A,
provided the employee with conditions or circumstances at work that are
substantially less favourable to the employee than those provided by the
old employer.
• Dismissal refers to conduct of employer that would bring the employment
relationship to an end.

• Dismissal is not bad per se. Section 186 of the LRA provides that it can be
• fair,
• Unfair or
• automatically unfair

• Consequently, the employee in re dismissals has a right not to be unfairly

dismissed: [Section 185 (a) of the LRA].

• Not every termination is a dismissal (i.e. resignation / retirement)

• Types:
• Refusal to renew a fixed term contract
• Refusal to allow an employee to return to work after maternity leave
• Selective re-employment
• Constructive dismissal
• Transfer of a business
 Termination of the contract with
or without notice
The BCEA Notice periods,

• 1 week for six months or less,

• two weeks, for more than six months but not more than one year,

• four weeks, for one year or more, or is a farm worker or domestic worker
who has been employed for more than six months

No notice: Employee committed a serious breach of contract, the employer

may terminate the contract summarily. Employee losses the notice periods
in terms of BCEA.
 Not prescribed
SA POST OFFICE V MAMPEULE

• The employee was removed as director of the Post Office and at the same time
terminated employment contract.

• The articles of association of the Post Office stated that when a director ceased to hold
office for any reason, his/her contract terminated automatically and simultaneously.

• The employee’s contract of employment contained a corresponding clause to the effect

that his contract would immediately and automatically terminate when he is removed as
director of the Post Office.

• The employer therefore argued that it was not a dismissal, because the action was
compelled by articles of association and also agreed to in terms of the contract of
employment

• The court rejected this argument and held that it was against public policy and not
possible in law.

• The employee had a right not to be unfairly dismissed and could not contract out of this
right, and a contract cannot provide for the automatic termination of employment.
Refusal to renew a fixed term contract
If an employee reasonably but the employer offers to Reasonable expectation : it
expects the employer to renew it on less favourable is NB that the employer
renew a fixed-term terms, or does not renew it must have created a
contract of employment at all, this will constitute a reasonable expectation.
on the same or similar dismissal E.g. previous renewals, or
terms, assurances of renewal.

REQUIREMENTS
Factors to consider: (a) the terms of
the contract (b) past practice of
renewal (c) nature of the
employment and the reason for the
fixed term basis (d) assurances that
the contract would be renewed (e)
failure to give reasonable notice of
non renewal
No single factor will define
what is reasonable, each case
judged on its own merits 
ultimately an objective test
SA RUGBY CASE
• He had an expectation that employer
would renew the FTC on same / similar
terms;
• Expectation was reasonable; and
• Employer didn’t renew it / offered to
renew it on less favourable terms
It was possible to have a
reasonable expectation of renewal
even if the written contract states
that employee can have no
expectation of a renewal of the
contract (but onus would be
heavier on the ee to prove an
expectation)
Black v John Snow Public Health Group
Not prescribed
• The applicants claim that the non-renewal of her fixed-
contract which had previously been renewed amounted to an
unfair dismissal.

• The court emphasised that, while previous renewals were

relevant to determine whether there was a reasonable
expectation, they were not decisive

• The employee worked for a non-governmental organisation,

which depended on foreign funds, and therefore had to review
its position annually in the light of the actual funding
received.

• The employee knew that, although the next year’s budget

made provision for her post that was no more than a financial
plan. She had a hope of renewal, but the employer never
created a reasonable expectation.
 Refusal to allow an
employee to return to work
after maternity leave
In terms of the BCEA, an employee is entitled to four
consecutive months (unpaid) maternity leave. This definition
could also be linked to automatically unfair dismissals.
 • Employer refuses to allow her to resume work after m/leave (4
months – BCEA)

• Prolonged absence not automatic termination

• Guarantees employment to a woman who has taken maternity leave

• Only for period entitled to ito BCEA / contract / collective

agreement

• Longer absence could be treated as abscondment

• Guarantees work on the same or similar terms but doesn’t necessarily

mean coming back to the same job.

• If the reason for dismissal is the pregnancy – automatically unfair

dismissal Think back to whitehead v woolworths…
Selective re-
employment
• Where an employer dismisses a number of employees for the

• same or

• similar reasons, and

• subsequently offers to re-employ one or more of them, but refuses to re-employ

another, this will constitute a “dismissal”.

• Not always unfair : It is not unfair if an employer retrenched employees and the
financial position of the business improves, the employer may re-employ some of
the employees. (operational requirements)

• UNFAIR: if the employer did not follow a fair procedure and cannot justify the
selection of re-employment. (dismissed everyone and only re-hired the females)
Constructive dismissal
• Where an employee resigns because the employer made continued employment
intolerable for the employee.
• Although the employee terminates the contract, it was not done voluntarily. It was at
the behest of the harsh employment environment
• Requirements
1. the employee must show that he or she has resigned.
2. the employee must show that the reason for the resignation was that
continued employment become intolerable, and
3. the employee must show that it was the employer’s conduct that created the
intolerable circumstances
• Test for constructive dismissal: Objective [reasonable employee] objectively
unbearable
Mafomane case. [requirements]
• Employer terminated contract of employment;
• Continued employment was intolerable;
• Intolerability was of employer’s making; and
 PRETORIUS CASE
If employee subjected to continual harassment
and the employer does nothing about it
The employee is deemed constructively
dismissed if resigned in desperation
The employee must prove she did not resign
voluntarily
GROBLER CASE
Sexual Employer can be held vicariously liable for sexual
harassment of an employee
harassment NTSABO CASE
and Absence of action by the employer was unfair
led to intolerable environment for employee to
constructive continue employment
compelled to resign.
dismissals
• Employer ought to have foreseen development of
hostile and intolerable working environment in the
circumstances and chose to deny ever being
informed of the problem
• Employer did not prove dismissal was fair thus
employee was entitled to compensation regarding
her dismissal
Transfer of a business
• Also a form of constructive dismissal.

• If the employee resigns because conditions or circumstances at work under the new employer are

substantially less favourable than under the previous employer, such termination will constitute a

“dismissal”

• The LRA aims to protect job security (on more or less the same terms) of an employee affected by the

transfer of a business as a going concern from one employer to another, both in the ordinary course of

the business and in circumstances of insolvency

• Thus if the conditions are less favourable the employee can with or without notice, terminate the

contract of employment, and claim constructive dismissal.

Disputes over this type of dismissal would depend on whether:

• Employer offered T&C’s substantially less favourable; and then

• Whether employer created intolerable working conditions that left employee little option but to resign +

claim such dismissal

Onus:

• First: employee to prove new T&C’s are less favourable

• Second: employer to prove it was justified in imposing T&C’s (assumed situation is automatically
Other forms of termination
that are not “dismissals”

a) Resignation – once accepted can’t be

withdrawn except in the heat of the moment
CEPPWAWU v Glass
b) Termination of the contract by the efflux of
time
c) Retirement age
d) Insolvency
Read pages
e) Mutual agreement 250 -257
f) Death\supervening impossibility of
performance
g) Other automatic dismissals (absent from work,
not following code of conduct, etc)
 Date of dismissal
•Date of dismissal = the earlier date between the date that
the contract was terminated / the date that the ee left the
services of the er

•If notice is given date of dismissal = date that the notice

expired / the date that the ee is paid his outstanding salary

•When dealing with non renewal = date of dismissal = date

the ee was informed that the contract wont be renewed

•Pregnancy – terminate at maternity leave = date of notice

of termination.

•Doesn’t apply to constructive dismissals because the ee

makes the final decision
 Dispute resolution

• Refer to arbitration  ee can request that the matter goes

to the CCMA for arbitration (chapter 17). Can only arbitrate
after conciliation has failed.

• Refer to labour court

• Onus

• Remedies = reinstate / compensate

• Arbitration is a dispute settlement process in which a

impartial third party is appointed to study the dispute

and hear both the party to arrive at a decision binding
on both the parties. Conciliation is a method of
resolving dispute, wherein an independent person
helps the parties to arrive at negotiated settlement
 Proving a dismissal

Employee must prove

• An employer employee relationship.  Whitehead case : a person

is only protected if covered in terms of sec 213 LRA. A person is
only an employee when he actually works for another or renders
services and is entitled to remuneration for work done

• There was a dismissal based on section 186 of the LRA

The burden of proof then moves to the employer

Employer must prove

• that the dismissal was fair. To prove fair dismissal, the following
must be proved

• Substantive fairness: that there was a fair reason for the

dismissal and

• Procedural fairness: that a fair procedure was followed

 Remedies

•Reinstate / compensate / re-employ (s193(1))

•Reinstate / re-employ = first choice, only reasons court wouldn’t allow it:

• The ee doesn’t want that remedy

• The circumstances surrounding the dismissal are of such that a continued employment
wouldn’t be tolerable

• It isn’t reasonably practical to reinstate the ee

• The dismissal is unfair because the er didn’t follow the correct protocol

•Reinstate vs re-employ?

•Compensation = self-study page 263 - 267