Labour law - Automatically unfair dismissals

Section 186(1)(f) holds?

(f) refers to dismissal when 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 are substantially less favourable to the employee than those provided by the old employer.

Under section 187 of the LRA an employer may not dismiss for any of these reasons;

- 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 - the employee refused or indicated an intention to refuse, to do any work under normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health - To compel the employee to accept a demand in respect of any matter of mutual interest between the employee and the employer - That the employee took action, or indicated an intention to take action, against the employer by exercising any right conferred by this Act, or by participating in any process in terms of this Act - The employee's pregnancy, intended pregnancy, or any reason related to her pregnancy - 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

Under Schedule 8 Item 7 any person who is determining whether a dismissal for misconduct is unfair should consider?

- Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace - if a rule or standard was contravened, whether or not the rule was a valid or reasonable rule or standard, whether the employee was aware, or could reasonably be expected to have been aware, of this rule or standard, whether the rule or standard has been consistently applied by the employer, and whether the dismissal was an appropriate sanction for the contravention of the rule or standard.

Act give three good reasons to dismiss - what are they? If shown then there would be substantive reasons for dismissal.

1. Misconduct 2. Incapacity 3. Operational requirements

The general rule in terms of termination of employment is that the employer has?

Done something to bring that employment to an end

Not every dismissal is unfair - when is a dismissal unfair?

A dismissal is unfair when it meets the requirements of section 188.

Dismissals contrary to section 5 LRA (freedom of association - trade unions) are?

Automatically unfair.

What are the tools for dismissal?

Chapter VIII of the LRA Code of Good Practice: Dismissals (Schedule 8 of the LRA)

Under Schedule 8, in exceptional circumstances, if the employer cannot reasonably be expected to comply with the guidelines, the employer may...?

Dispense with pre-dismissal procedures.

Must a rule allows be formally expressed? Or are certain rules so embedded that they are implicit?

Guideline 80 holds that may rules are so embedded they are implicit.

Under Schedule 8 Item 7 provides?

Guidelines in cases for dismissal for misconduct.

Compensation for an automatically unfair dismissal will only be granted?

If reinstatement is not possible. Reinstatement remains the primary remedy.

So what is a dismissal in terms of section 186(1)(a)?

In terms of section 186(1)(a) - dismissal means that an employer has terminated employment with/without notice.

What is a dismissal in terms of section 186(1)(b)?

In terms of subsection (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 or similar terms but the employer offered to renew it on less favourable terms or did not renew it; or 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.

If you are dismissed for union activities this is automatically unfair - what is the case dealing with this?

National Union of Public Services and Allied Workers Obo Mani and Others v National Lotteries Board

In terms of the fair procedure requirements laid out in Schedule 8 discipline against a trade union representative of an employee who is an office-bearer or official of a trade union should...?

Not be instituted without first informing and consulting the trade union.

When is a termination of employment a dismissal?

Not every termination of employment is a dismissal - only if it meets the requirements of the definition provided in section 186(1) of the LRA

When would termination of employment not equal a dismissal?

Resignation (unless a constructive dismissal) - there is no need for acceptance by the employer. Termination by the effluxion of time/fulfillment of the terms of condition (but these cannot be contrary to section 5 of the LRA) Retirement Age (normal or agreed) - at the University it is 65. If there is no retirement age agreed upon, the onus is on the employer to show that in that field it is common practice for persons to retire. Must distinguish rules of retirement funds and the retirement age for purposes of termination. Insolvency/compulsory winding up - the contract is suspended until terminated by the liquidator or the lapse of 45 days. Severance pay in terms of the BCEA. However, there is a renewal expectation that must be handled with care. Agreement/waiver/settlement - Fakude & Others case Death Supervening impossibility (license revoked or work permit not renewed) - mixed approaches to this. Deemed discharge in terms of legislation - Grootboom v NPA

What is a dismissal in terms of section 186(1)(c)?

Section 186(1)(c) - 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 (d) an employer is 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 (e) an employee terminated employment with or without notice because the employer has made continued employment intolerable for the employee (does not have to be a last resort - can be any reason - i.e. sexual harassment/conditions of employment/incompatible personalities)

Some dismissals are for certain reasons automatically unfair. Which section of the LRA lists these?

Section 187 of the LRA lists these.

In terms of unfair dismissals - there are both procedural and substantive elements, what's the difference?

Sub - good reasons Proc - fair procedure must be followed.

Schedule 8: Item 4 holds?

That an employer conduct an investigation - this needs not be a formal inquiry. The employer must notify the employee of the allegations using a form of language that the employee can reasonably understand and allow the employee the opportunity to state a case in response to the allegations. This also requires giving the employee reasonable time to prepare a response, allow the employee the assistance of a trade union representative or a fellow employee and once a decision has been made - the employer must communicate the decision taken, and preferably furnish the employee with written notification of that decision

In the case of Avril Elizabeth Home for the Mentally Handicapped holds?

The inquiry by an employer under Schedule 8 is not necessarily a criminal justice model inquiry. All that is referred to is that an opportunity must be given by the employer to the employee to state their case. There is also no formal right to appeal, but merely a right to recourse to an independent tribunal when the substantive merits of a decision to dismiss are challenged.

Who is the onus on in proceedings regarding dismissal?

The onus is on the employee to establish the dismissal, one that has been established the onus is on the employer to show that the dismissal was fair - this is set out under section 192 of the LRA.

Under Schedule 8, if dismissed, the employee should be given...?

The reasons for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.

In terms of the list provided under section 187 - the court must ask?

What is the dominate reason for dismissal? 'But for' - the dismissal would/would not have occurred. Has the employee produced sufficient evidence to raise a credible possibility that the dismissal occurred for a reasons that would render it automatically unfair.

What is necessary to look at in terms of dismissals and expectations?

Whether objectively there was an expectation created that the employment contract would be offered/renewed