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ABR 410: In-depth summary of theme 7-9
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KYLIE VAN DER MERWE - NOTESSTUDY THEME 7: UNFAIR DISMISSAL:
LEARNING OUTCOMES - Discuss the following aspects regarding Chapter 9-13:
✓ The statutory meaning of “dismissal” with emphasis on: termination of employment by
the employer; refusal by the employer to renew a fixed-term contract; and constructive
dismissal.
✓ Is the notion “constructive dismissal” wide enough to cover the notion of bullying at the
workplace?
✓ What actions do not constitute dismissal?
✓ Discuss the resolution of dismissal disputes, onus in dismissal disputes and the remedies
in terms of the LRA.
✓ Discus the content of the definition of “automatically unfair reasons” for dismissal.
✓ Explain the reasons that could potentially render a dismissal fair.
✓ How is the substantive fairness of a dismissal for misconduct determined? • Identify the
requirements for a disciplinary hearing to be fair.
✓ Discuss incompetence and incapacity as possible grounds for a fair dismissal.
✓ Define “operational requirements” and examine the procedure that the employer must
follow when a dismissal due to operational requirements is considered.
✓ Is there an obligation on an employer to consult with trade unions representing minority
groups at a workplace during retrenchments?
✓ Calculate the severance pay an employee who was dismissed for operational
requirements will be entitled to.
✓ Evaluate the development of the protection provided to employees in cases of transfer
of a business. (Read for purposes of interest only.)
CUMPULSORY STUDY MATERIAL:
✓ Van Niekerk and Smit Law@work (2019) Chapters 9-13.
✓ TFD Network Africa (Pty) Ltd v Faris (2019) ILJ 326 (LAC).
✓ Centre for Autism Research and Education CC v CCMA [2020] 12 BLLR 1260 (LC).
✓ Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC).
✓ Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC).
✓ Jansen v Legal Aid South Africa (2018) 39 ILJ 2024 (LC).
✓ Woolworths (Pty) Ltd SA v Commercial, Catering and Allied Workers Union (2019) ILJ 87
(CC).
✓ Association of Mineworkers and Construction and Others v Royal Bafokeng Platinum
Limited and Others [2020] 5 BLLR 441 (CC).
Page 26 of 113
, KYLIE VAN DER MERWE - NOTES
1. UNFAIR DISMISSAL - INTRODUCTION:
• Until the early 1980s, there was NO protection against unfair dismissal in South Africa. If the
employer gave the required notice of termination of employment, the employee generally had no
recourse, however unfair the reason for dismissal might have been.
o The principle of reciprocity required an employee to give notice of termination of
employment in terms of the contract for it to be validly terminated. The basis of this
principle, of course, was the assumed equality in bargaining strength between employer
and employee. However, in most instances, this is a fiction. While the dismissal of an
employee would rarely be of any consequence to the employer, the consequences for the
employee are serious.
• For this reason, many countries adopted legislative measures to require employers to demonstrate
a fair reason for the termination of an employee’s employment, and to observe some form of fair
procedure prior to making a decision to dismiss.
o The basis for this intervention is controversial. There are those who argue that employees
acquire rights to jobs, akin to the rights of ownership in property. Others have argued that
individual dignity and autonomy are the primary justifications for unfair dismissal laws.
• At a higher level, unfair dismissal laws have been attacked on the basis that they undermine the
flexibility that is necessary in a globalised environment, and thus inhibit the ability to raise levels of
competitiveness. The rigidity of work security protections has thus imposed a cost on the production
and employment efficiencies that is unwarranted. The contrary view is that protecting work security
can contribute to improved productive efficiency and innovative capacity, and that protection
against unfair terminations of employment, especially in the case of retrenchments, can limit social
costs to communities and contribute to macro-economic stability.
• ILO Convention 158 regulates the termination of employment at the initiative of the employer. The
convention was adopted in 1982, and while not the most widely ratified convention, it has had a
profound effect on South African law. First, the Industrial Court drew heavily on the convention
during the 1980s when it developed protection against unfair dismissal under the unfair labour
practice definition. Secondly, much of the wording of Chapter VIII of the LRA draws on the
convention. Thirdly, the courts have referred to the convention in interpreting and applying the
statutory protection against unfair dismissal.
• In essence, the convention requires that the employment of a worker may not be terminated unless
there is a valid reason for the termination connected with the capacity or conduct of the worker,
or based on the operational requirements of the undertaking.
o The convention also lists reasons for termination that do not constitute valid reasons for
termination (the genesis of the ‘automatically unfair dismissal’ in section 187 of the LRA),
and provides a right to appeal against termination of employment to an impartial body
empowered to decide whether the dismissal was justified.
o In the case of a dismissal for a reason based on the employer’s operational requirements,
additional requirements of consultation are prescribed, as well as provision for payment of
severance benefits in some form.
Page 27 of 113
, KYLIE VAN DER MERWE - NOTES
2. WHAT IS A DISMISSAL:
• The termination of an employment contract is not synonymous with the statutory concept of
dismissal.
o An employee claiming unfair dismissal must establish the existence of a dismissal.
o If the fact of a dismissal is disputed, the employee bears the onus to prove the existence of
a dismissal.
o The definition of ‘dismissal’ contained in S186(1) of the LRA contains six elements, each of
which is analysed below.
• The statutory definition of dismissal is much broader than the common-law concept of
termination of employment, and includes a number of elements that would not in the ordinary
course be thought to be dismissals.
o For example, a refusal by an employer to re-engage an employee, and even an employee’s
resignation may constitute dismissals in certain circumstances (see constructive dismissal).
o Similarly, not every termination of employment is a dismissal. For example, the expiry of an
employment contract entered into for a fixed period and a retirement both have the effect
of terminating employment, but neither, in itself, is a dismissal.
• The EMPLOYEE must convince the CCMA or bargaining council there was a ‘dismissal’ and NOT a
resignation.
• If an EMPLOYEE succeeds in establishing the existence of a dismissal, it means no more than the
employee has been ‘dismissed’ for the purposes of the LRA.
o The existence of a dismissal does not mean that the dismissal is necessarily unfair.
o In the case of dismissals that are not automatically unfair, it generally remains for the
EMPLOYER to establish that the dismissal was effected for a fair reason, after following a
fair procedure.
▪ Thus: a fair reason and a fair procedure was present.
o A dismissal must therefore be both substantively and procedurally fair in order to escape a
finding of an unfair dismissal.
Page 28 of 113
, KYLIE VAN DER MERWE - NOTES
3. THE STATUTORY MEANING OF ‘DISMISSAL’:
i. TERMINATION OF EMPLOYMENT BY THE EMPLOYER, WITH OR WITHOUT NOTICE
(S186(1)(a) of the LRA):
• This is probably the most commonly understood form of termination of employment,
termination at the initiative of the employer.
o Prior to the Labour Relations Amendment Act 6 of 2014 (LRAA) the wording of the
section limited its application to the termination of contracts of employment and
thus extended protection against unfair dismissal to only those persons who were
employed in terms of a common-law contract of employment.
o The effect of this limitation was that not all persons who qualified as ‘employees’
for the purposes of the definition in section 213 of the LRA could claim to have been
dismissed in the sense contemplated in section 186(1)(a).
• The section has been amended to incorporate the termination of ‘employment’ by the
employer (as opposed to the termination of a contract of employment), either summarily
or by giving notice of intention to terminate.
o This may not always require a direct act of giving notice or summarily terminating a
contract.
o The Labour Appeal Court has applied a broader interpretation of this provision, and
stated that what is necessary for there to be termination by the employer was that
the employer had ‘engaged in an act which brings the contract of employment to
an end in a manner recognised as valid by the law’.
o The court held that the passing of a resolution to wind up a company satisfied the
requirements of the definition of dismissal, because it was an act undertaken by the
employer that had the effect of terminating the contracts of employment of its
employees.
o The Labour Court had previously given the term ‘employment contract’ in section
186 an extended meaning in order for it to be consistent with section 23 of the
Constitution and the objects of the LRA. This approach has been given statutory
expression in the LRAA.
• In principle, this form of termination of employment (i.e. by the employer, with or without
notice), is quite easily established.
o In practice however, it is sometimes difficult, on the facts, to establish the
existence of a dismissal.
o There might be genuine ambiguity about whether the employer uttered words that
could objectively be construed as a dismissal, or whether an employee intended to
resign.
o An employee can resign in the heat of the moment. It can still be a dismissal if the
employer refuses to accept a retraction of resignation.
Page 29 of 113
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