This is a comprehensive summary of Lesson 5 in LLW2601. It
includes the demarcated information included in the prescribed
textbook as well as the study guide. If you choose not to buy the
textbook, this summary fills in all the parts you would otherwise miss.
These notes are very useful in stud...
Lesson 5 - Termination of the
contract of employment
Class Individual Labour Law IOP2601
Reviewed
This is a comprehensive summary of Lesson 5 in LLW2601. It
includes the demarcated information included in the prescribed
textbook as well as the study guide. If you choose not to buy the
Comments textbook, this summary fills in all the parts you would otherwise miss.
These notes are very useful in studying for assignments and using
as core study material.
M McGregor & AH Dekker (eds) LABOUR LAW Rules! 4th ed
Sources (2021), Siber Ink
Dismissal and automatically unfair
dismissal
A dismissal is unfair when:
it is for the wrong reason, but a fair process was followed
it is for the right reason, but the wrong process was followed
it was for the wrong reason and the wrong process was followed
Lesson 5 - Termination of the contract of employment 1
, Constructive dismissal
It occurs when an employee resigns from his or her employment because the
employer has made continued employment intolerable for the employee. The
employee must prove the existence of the following three elements in order to
succeed with a claim for constructive dismissal:
that they resigned
that the reason for the resignation was that continued employment became
intolerable
that it was the employer’s conduct that created the intolerable environment
Dismissal for misconduct
For substantive fairness it must be established:
whether the employee contravened a rule or standard regulating conduct in, or
of relevance to, the workplace;
if so, whether the rule was valid and reasonable. This is normally determined
with reference to the needs of the workplace and business;
whether the employee was aware, or could reasonably be expected to have
been aware, of the rule. An employee can only be punished if he or she knew
that the conduct was unacceptable and that a transgression of this rule could
lead to dismissal;
whether the rule was consistently applied by the employer. An employer cannot
enforce a rule which was previously ignored. If he or she does so, it is called
historical inconsistency, because the employer now acts inconsistently with past
conduct. If the employer wants to enforce the rule in future, it would first have to
inform the employees. If the employer treats employees who are guilty of the
same offence at more or less the same time, differently from one another, it is
called contemporaneous inconsistency; and
whether dismissal is the appropriate sanction for contravention of the rule.
Dismissal should be a last resort.
Lesson 5 - Termination of the contract of employment 2
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