Automatically Unfair Dismissals Overview
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Questions and Answers

Which of the following actions is protected under S187(1)(d)?

  • Filing a grievance against another employee
  • Representing a fellow employee at a disciplinary hearing (correct)
  • Ignoring workplace rights
  • Taking a leave of absence

The purpose of S187(1)(d) is to allow employees to exercise their rights without fear of victimization.

True (A)

What does S187(1)(d) protect employees from?

Dismissal due to exercising rights conferred by the LRA or participating in related proceedings

S187(1)(d) does not apply to disputes involving __________ employees.

<p>individual</p> Signup and view all the answers

Match the following terms with their descriptions:

<p>S187(1)(d) = Protection against dismissal for exercising rights Grievance filing = Does not concern employer-related actions Conciliation = A process to resolve disputes Insubordination = Common reason for employer's dismissal argument</p> Signup and view all the answers

Which of the following is NOT a reason for automatically unfair dismissal?

<p>Poor job performance (C)</p> Signup and view all the answers

The employer has the burden of proof in cases of automatically unfair dismissal.

<p>False (B)</p> Signup and view all the answers

What section provides the reasons for automatically unfair dismissal?

<p>S187</p> Signup and view all the answers

An employee cannot be dismissed due to their _____ without it being considered automatically unfair.

<p>pregnancy</p> Signup and view all the answers

Match the automatically unfair dismissal reasons to their descriptions:

<p>Infringement of S5 of the LRA = Freedom of association Refusal of a demand = Matter of mutual interest Protected disclosures = Disclosure in terms of the Protected Disclosures Act Transfer of business = S197 of the LRA</p> Signup and view all the answers

If an employee establishes a credible possibility of automatically unfair dismissal, what must the employer prove?

<p>The dismissal was for another fair reason. (B)</p> Signup and view all the answers

Participation in a protected strike is a valid reason for automatically unfair dismissal.

<p>True (A)</p> Signup and view all the answers

What type of disclosure is protected under the Protected Disclosures Act?

<p>Protected disclosures</p> Signup and view all the answers

What does S4 primarily protect?

<p>Rights of employees and job applicants to join legal activities of trade unions (D)</p> Signup and view all the answers

S5 offers protection against dismissal due to trade union activities.

<p>True (A)</p> Signup and view all the answers

What must a lock-out comply with to be protected?

<p>Sections 64 and 65 of the LRA</p> Signup and view all the answers

The case of Jacobson v Vitalab took place in the year _____

<p>2019</p> Signup and view all the answers

In the case Victor v Finro Cash and Carry, the ruling was made in what year?

<p>2000 (A)</p> Signup and view all the answers

Dismissals due to operational restructuring are automatically unfair.

<p>False (B)</p> Signup and view all the answers

Match the following cases with their primary legal focus:

<p>National Democratic Change &amp; Allied Workers Union v Cummins Emission Solutions = Trade union activities and dismissals Chemical Workers Industrial Union v Algorax = Lock-out compliance Mashava v Cuzen &amp; Woods Attorneys = Employee rights DBT Technologies v Garnevska = Dismissal principles</p> Signup and view all the answers

Which section of the LRA specifically protects the rights of employees from unfair dismissal due to trade union activities?

<p>S5</p> Signup and view all the answers

What constitutes a dismissal if an employee resigns after a transfer due to substantially less favorable terms and conditions?

<p>It is considered constructive dismissal. (B)</p> Signup and view all the answers

The employee does not need to provide evidence linking the dismissal to the transfer.

<p>False (B)</p> Signup and view all the answers

What act regulates protected disclosures?

<p>Protected Disclosures Act 2000</p> Signup and view all the answers

A disclosure regarding conduct of an employer must establish that a _____ occurred.

<p>criminal offence</p> Signup and view all the answers

Which of the following is NOT a reason for protected disclosure according to the act?

<p>Weather conditions (A)</p> Signup and view all the answers

What must an employer prove regarding the inherent requirements of a job?

<p>It is an inherent requirement unique to that job. (D)</p> Signup and view all the answers

Match the following reasons for protected disclosures with their descriptions:

<p>Criminal offence = An act likely to violate the law Legal obligation = Failure to comply with legal requirements Miscarriage of justice = Injustice in the legal system Health/safety = Endangerment of a person's wellbeing</p> Signup and view all the answers

An employer can dismiss an employee based solely on their HIV status.

<p>False (B)</p> Signup and view all the answers

An employee can claim that dismissal was used to avoid obligations under S197, even if the transfer itself was not the direct cause of the dismissal.

<p>True (A)</p> Signup and view all the answers

What conditions must be met for a dismissal to be considered automatically unfair due to depression?

<p>The evidentiary burden must be discharged.</p> Signup and view all the answers

What must the employer show if an employee claims dismissal was due to the transfer?

<p>Another fair reason for the dismissal</p> Signup and view all the answers

An employer bears the onus to show that accommodating an employee would cause __________ hardship.

<p>undue</p> Signup and view all the answers

In the case of Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union, what was held regarding female employees?

<p>Discrimination based on gender is only justified if jobs can inherently only be performed by males. (C)</p> Signup and view all the answers

Section 197 ensures that transferred employees do not lose favorable terms from their previous employer.

<p>True (A)</p> Signup and view all the answers

If a job requirement restricts a religious belief that does not impair an employee's duties, it is __________.

<p>not justified</p> Signup and view all the answers

Employers can dismiss employees for operational reasons during a protected strike even if the reason is not the dominant cause.

<p>False (B)</p> Signup and view all the answers

What must an employer prove if they dismiss an employee for operational reasons during a strike?

<p>The operational reasons must be the dominant cause.</p> Signup and view all the answers

Refusal to work during a strike could be considered ______ unless necessary for safety.

<p>automatically unfair</p> Signup and view all the answers

Which of the following forms of replacement labor does NOT pose a threat to the right to strike?

<p>Voluntarily agreeing to do the work of striking employees (C)</p> Signup and view all the answers

Criminal activities like assault or damage to property cannot justify dismissal during a protest.

<p>False (B)</p> Signup and view all the answers

In the NUMSA & Others v Dorbyl Ltd & Another case, what factor predated the strike and contributed to the dismissals?

<p>The need to retrench.</p> Signup and view all the answers

Match the dismissal reason with its corresponding protection:

<p>Participation in a protected strike = S187(1)(a) Misconduct during a strike = Permissible dismissal Refusal to perform work of strikers = S187(1)(b) Assault on co-employees = Dismissal justified</p> Signup and view all the answers

Flashcards

Automatically Unfair Dismissal

A dismissal that's automatically unfair because a specific protected right was violated

S187 Reasons

9 specific reasons for dismissal that are automatically unfair (e.g., discrimination, protected strike participation)

Protected Strike

A lawful strike, protected by law to uphold employee interests

Employee's Burden of Proof (Automatic Unfairness)

Employee must show a credible possibility of an automatically unfair dismissal by presenting evidence (e.g., not just stating the dismissal was unfair).

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Employer's Defense (Automatic Unfairness)

If an employee proves automatic unfairness, the employer must prove a fair reason for dismissal. If it's based on alleged discrimination, employer can defend.

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Dominant Cause Inquiry

The initial investigation in automatic unfair dismissal cases focuses on the actual reason for the dismissal.

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Freedom of Association (S5 LRA)

Employees' right to associate with others to discuss their work conditions

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Protected Disclosures

Reporting unethical or unlawful activities by whistleblowers

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Dismissal for Operational Reasons

Firing an employee due to business needs, even during a strike, but the operational necessity must be the primary reason for dismissal, not the strike itself

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Replacement Labour

Workers hired or asked to fill roles of striking workers.

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Refusal to do Protected Striker's Work

Employees refusing to work the roles of striking employees.

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Unfair Dismissal (Replacement Labour)

Dismissal for refusing to work the roles of striking workers, is automatically unfair unless the work is critical for safety.

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Employee Misconduct

Inappropriate actions that can lead to job termination (e.g., damaging property, assault).

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Dominant Cause

The main reason behind an event or action. In the context of dismissal during a strike, the need to retrench must not be linked to the strike.

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S187(1)(b) of LRA

Dismissal for refusing work of striking co-workers is automatically unfair unless the work is necessary to prevent an immediate safety crisis.

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S187(1)(d) protection

Protects employees from dismissal if they exercise labor rights, like referring issues to the Labour Court or representing colleagues.

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Employee rights exercised (S187(1)(d))

Actions like referring a matter to conciliation/arbitration, representing a coworker, or initiating litigation against an employer.

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Grievance filing (S187(1)(d))

Filing a grievance against another employee does not fall under S187(1)(d).

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Employer's dismissal dispute strategy

Employers often dispute dismissals, frequently citing misconduct (like insubordination) as the reason.

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S187(1)(d) & S5 LRA overlap

S187(1)(d) and Section 5 of the LRA frequently relate to the same issues regarding fair dismissal, and a dismissal dispute may satisfy protections under both sections.

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Arbitrary Ground

A reason for dismissal that is unfair on its face because it's based on a protected characteristic, regardless of the specific details.

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Inherent Requirement

A skill, characteristic, or qualification that is absolutely essential for a specific job, without which the job cannot be performed.

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Is being male an inherent requirement?

This question is relevant when evaluating if a job description is discriminatory. If being male is not necessary to do the job, then the job cannot be considered inherently requiring a male employee.

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Employer's Burden (Inherent Requirements)

If an employer claims a job inherently requires a specific characteristic, they must prove it. This is a high legal burden.

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Undue Hardship

An employer's argument that accommodating an employee's protected need (e.g., a disability) would create excessive burden or disruption to their operations.

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Transfer of Business (S197)

A legal provision protecting employees' jobs when a business is sold. Employees usually transfer to the new owner with their existing terms of employment.

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S187(1)(g)

A provision designed to prevent employers from avoiding the transfer of employment provisions (S197) by firing employees before a sale goes through.

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Less Favorable Terms

The transfer of employment under S197 should not result in an employee receiving less favorable employment terms than they had with the previous employer.

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Substantially Less Favourable Terms After Transfer

If an employee resigns after a transfer due to the new employer offering significantly worse terms and conditions, it's considered a dismissal by law.

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Dismissal After Transfer: Employee's Burden

The employee must prove they were dismissed and that the dismissal was connected to the transfer of their job.

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Dismissal After Transfer: Employer's Defense

After the employee proves dismissal was related to the transfer, the employer must show a different reason for dismissal that wasn't connected to the transfer.

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Dismissal Used to Avoid Transfer Obligations

Even if the dismissal wasn't directly caused by the transfer, the court can decide that the employer used the dismissal to escape their obligations under the transfer law, making it an automatically unfair dismissal.

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Protected Disclosure: Types of Information

Protected disclosures include information about criminal offenses, legal violations, miscarriages of justice, dangers to health or safety, environmental damage, unfair discrimination, and the concealment of any of these.

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Protected Disclosure: Employee's Reason to Believe

An employee must have a genuine reason to believe that the information disclosed indicates wrongdoing to be protected.

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Protected Disclosure: Examples

Examples of protected disclosures include reporting fraud, corruption, health and safety violations, and discrimination.

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S4 & S5 of LRA

These sections of the Labour Relations Act (LRA) safeguard employees' rights related to trade unions. S4 focuses on the freedom to join and participate in trade unions, while S5 protects employees from dismissal or unfair treatment due to their union activities.

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Trade union activities

This term encompasses more than just activities directly related to unions, including acting as a union representative, participating in union meetings, and advocating for union-related issues within the workplace.

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Shop steward

A union representative who acts as a liaison between employees and the union within the workplace, addressing employee concerns and representing them in union-related matters.

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Dominant Cause (Dismissal)

This principle examines the primary reason for an employee's dismissal, determining whether it's directly linked to trade union activities or other factors. For example, dismissal during a strike must demonstrate operational necessity, not just the strike itself.

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Lock-out

An employer's tactic to prevent employees from working, often used as a countermeasure to a strike. However, a lock-out must comply with specific regulations outlined in the LRA.

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Protected striker's work

Tasks typically performed by striking employees that other workers are asked to do during a strike. Refusal to perform such work can lead to dismissal, but only if the work is essential for safety.

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Conditional vs. Final Dismissal

Conditional dismissal is temporary, with a chance for the employee to resolve the issue and return to work. Final dismissal is permanent and ends the employment relationship.

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Dismissal based on operational requirements

An employer's right to dismiss an employee based on business needs, but this must be the primary reason for dismissal, not simply related to a strike or trade union activity.

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Study Notes

Automatically Unfair Dismissals

  • Automatically unfair dismissal occurs when dismissal is based on one of 9 reasons, infringing a basic human right.

  • 9 reasons for automatically unfair dismissal:

    • Infringement of freedom of association (S5 of LRA).
    • Participation in a protected strike.
    • Refusal to do the work of another employee participating in a protected strike.
    • Refusal of employee demand concerning a mutual interest.
    • Exercising, or indicating intention to exercise, rights conferred by the Act or instituting proceedings.
    • Pregnancy.
    • Discrimination.
    • Transfer of a business under S197 LRA.
    • Protected disclosures under the Protected Disclosures Act.

  • The onus is initially on the employee to establish a credible possibility of an automatically unfair dismissal (De Beer v SA Export Connection CC).

  • If the employee proves automatically unfair dismissal, the employer cannot defend the termination by proving the reason was fair. The employer must prove an alternative fair reason for the dismissal.

  • If discrimination is alleged, the employer may have a defence under S187(2).

Dominant/Proximate Cause

  • The initial inquiry in automatically unfair dismissal cases is into the real reason for the dismissal.
  • The court uses a two-prong test:
    • Factual Causation: would the dismissal have occurred without the alleged automatically unfair reason?
    • Legal Causation: was the alleged reason the main cause of dismissal? The court looks at the most probable inference from the facts.

Prescribed Case (Aveng Trident Steel)

  • Aveng experienced declining sales and profitability due to harsh economic conditions and rising costs.
  • Aveng initiated consultation for retrenchment under section 189(3) of the LRA, potentially affecting 1,784 employees.
  • Aveng offered voluntary severance packages (VSPs) and early retirement options.
  • NUMSA proposed a reduced grade structure.
  • 253 employees left the company (249 took VSPs, 4 were retrenched).
  • Aveng reached an interim agreement, but NUMSA later reneged.
  • Aveng implemented a redesigned job structure, with 71 employees accepting. 733 employees rejected the offer and were terminated on April 24, 2015.

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Topic 5: Automatically Unfair Dismissals PDF

Description

This quiz explores the concept of automatically unfair dismissals, focusing on the nine specific reasons that qualify under human rights infringement. It covers legal frameworks and case law essential for understanding employee rights in the workplace. Test your knowledge of these crucial legal protections and their implications for employers and employees.

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