Covers all class notes for the work tested in the exam.
The notes include a summary of all the relevant cases.
Tips for the June/July exam included.
All sections of the Labour Relations Act included.
The common law offer an employee virtually no protection against unfair dismissal
The law of dismissal developed out of international law which includes the influences of the ILO
conventions
Unfair dismissal i.t.o the LRA
Section 185 LRA
Every employee has the right not to be
1. (a) unfairly dismissed; and
2. (b) subjected to unfair labour practice.
I.t.o this you need to ask 3 main questions:
1. was the worker an employee?
2. if so was there a dismissal
3. if so was the dismissal substantively and or procedurally fair
Statutory definition of dismissal and the onus
Dismissal: the termination of employment by the employer.
The employee has the onus to establish that there has been a dismissal
If this has been established then section 192(2) places the onus on the employer to prove
the fairness of the dismissal
NB: The mere fact that there was a dismissal does not nessicarily mean that the dismissal was unfair.
Definition in section 186(1) of the LRA
- Important protections already built into the expanded definition of dismissal
(contratual common law)
• 3 types of dismissal
• Onus on employee
Know the list – but focus on;
• s 186(1);
• (a) – termination of employment by the employer without notice
• (b) –The employers failture to renew fixed term contracts
• (e) – When the employee resignes via constructive dismissal (continued
employment is intolerable)
,Section 186- 6 forms of dismissal
1. (1) "Dismissal" means that-
1. (a) an employer has terminated a contract of employment with or without notice;
2. (b) an employee 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;
3. (c) an employer refused to allow an employee to resume work after she-
1. (i) took maternity leave in terms of any law, collective agreement or her contract of
employment; or
2. (ii) was absent from work for up to four weeks before the expected date, and up to eight
weeks after the actual date, of the birth of her child;
4. (d) 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
5. (e ) an employee terminated a contract of employment with or without notice because the employer
made continued employment intolerable for the employee.
6. (f) an employee terminated a contract of 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.
Types of dismissal (not necessarily unfair)
You look at these and then the above
1.
(a) S 186(1)(a) An employee/er has terminated a contract of employment with or without
notice
• Termination of employment by the employer (with or without notice) – contract not required (eg a
prostitute case)
Typically an employer will terminate employment without notice if the reason for termination is that the
employee committed a material or serious breach of contract.
With temrinaiton on notice the period of notice has to be equal to or more than the time included in the BCEA.
Even though the termination of employment may be lawful via common law ther termination may not be fair.
Via the LRA.
− Standard form of dismissal
Termination before commencement of employment:
▪ Whitehead v Woolworths (LC)
Abscondment by the employee
▪ If an employee absconds or deserts his employment
, ▪ Although desertion constitutes breach of contract, it does not necessarily bring the
contract of employment to an end.
▪ Only if the employer accepts the employee’s repudiation of the employment contract
can it be said that there was a dismissal.
Definition: An employee is regarded as having deserted when they fail to report for duty with the intention of
never returningto work for the employer.
Public Service act- legislation terminating employment is not a dismissal!
It,to s 17(3)(a)(ii) of the act – an employee who is absent without permission for more
than one calader montg will be deemd to have been dismissed via misconduct.
Thus they can claim under s 186 (1) of the LRA
Acceptance of resignation
▪ An employee who voluntarily resigns on notice has made a conscious decision to
terminate his employment
▪ Consider: intention of the parties to determine whether there has been resignation
▪ An employer does not always need to accept a resignation and the employee may in
certain circumstances wish to withdraw a hasty resignation made in the heat of the
moment.
▪ Termination by mutual consent is not dismissal
An employee may claim to have been dismissed while the empoyer claims that the employee resigned and that
termination as therefore at the instance of the employee and not dismissal i.t.o s 186.
Hence the intention of the parties is important
Resignaiton is a unilateral termination of contract by the employee that requires no consent of the empoyer
The employee must envince a clear and unambiguious intention not to go on with the
contract of employment
Thus a voluntary resignation by agreement is not a dismissal i.t.o s 186 1 (a)
Sections 37-38 requires a minium period of notice by the employee to the employer but these may be waived by
the employer.
Otherwise an employees contract of employment comes to effect when the end of the
noice period is up.
If an employee wrongfully purports to resign on no notice then the employer remains entitled to excersise its
contractual rights duing the notice period.
The court found that resignation with immediate effect immediately
brings the employment relationship to and end.
At this state the position is uncertain but; if a dishonest employee resigns ahead of being discovered for
misconduct it is sufficant to say that they had resigned and not been dismissed.
Automatic termination in contracts of employment / Termination of relationship by operation of law
, Where a contract provides that termianation will occour upon the
occourance of a speciifc event or upon a speciifc time.
Another type of this case is when the contract says that if a clinent stops
the work then their employment terminates
▪ Automatic termination in certain circumstances
▪ E.g. if the employee is absent without permission for more than 1 month will be
“deemed” to have been dismissed for misconduct.
(b) S 186(1)(b) – An employee 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 failed to renew it
− At common law a fixed term contract of employment expires automatically when the time
period as agreed in the contract comes to an end or when the specific project is completed.
− Employee will bear the onus to prove the expectation of continued or permanent employment
is reasonable
▪ Objective test – would a reasonable person anticipate renewal
− Employer must have created the impression that such an expectation was justified.
▪ E.g. past renewals, representation made to employees, etc.
▪ Prior promise or past practise
− If no reasonable expectation – termination is automatic and there is no dismissal
− Reasonable expectation of a permanent position?
▪ Can this section be used to secure permanent employment?
• How are they protected: s 198B LRA, s 186(1)(b) LRA, discrimination law
– 1 (b)
• i) an employee 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;
• ii) to retain the emplouee in employment on an indefinite basis nut tohersie on the
same or other similar terms but the employer offered to renew it on less favourable
terms, or did not retian it;
• What do you need for s 186(1)(b): Requirements
• Fixed term contract
• Reasonable expectation------is based on an objective test; prior promise past practice;
provisions of contract indicate a reasonable expectation
• Of;
• Renewal on same similar terms; but offer less favourable/ no offer to renew
• Retain permanently; but offer to retain on less favourable terms/ did not
offer to retain.
• If the employer doesn’t retiant the person with these requirements
then it ammounts to a dismissal
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