Podcast
Questions and Answers
Why may an employee's resignation from their job not be withdrawn?
Why may an employee's resignation from their job not be withdrawn?
If an employee does not physically show up for work without providing any notice to their employer, the employer should immediately initiate dismissal procedures.
If an employee does not physically show up for work without providing any notice to their employer, the employer should immediately initiate dismissal procedures.
False
What does FTC mean in the context of terminating employment contracts?
What does FTC mean in the context of terminating employment contracts?
Fixed term contract
The death of a director or manager automatically ends the employment contract of an employee.
The death of a director or manager automatically ends the employment contract of an employee.
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What is the primary legal framework that regulates business rescue in South Africa?
What is the primary legal framework that regulates business rescue in South Africa?
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Can a universal retirement age be unilaterally imposed by an employer, without any agreement or consultation?
Can a universal retirement age be unilaterally imposed by an employer, without any agreement or consultation?
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Which of these situations is NOT considered an automatically unfair dismissal according to the LRA?
Which of these situations is NOT considered an automatically unfair dismissal according to the LRA?
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In the context of unfair dismissal, what should an employer do to ensure procedural fairness?
In the context of unfair dismissal, what should an employer do to ensure procedural fairness?
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According to the LRA, who determines the process for resolving labour disputes?
According to the LRA, who determines the process for resolving labour disputes?
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Which of these situations is NOT typically included in the scope of the CCMA's jurisdiction?
Which of these situations is NOT typically included in the scope of the CCMA's jurisdiction?
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What is the key difference between conciliation and arbitration in the resolution of labor disputes?
What is the key difference between conciliation and arbitration in the resolution of labor disputes?
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The Labour Court has the authority to review arbitration awards and can overrule the arbitrator's decisions.
The Labour Court has the authority to review arbitration awards and can overrule the arbitrator's decisions.
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Study Notes
PEMA5122 - Learning Unit 6: Dismissals and Other Ways of Terminating Employment Contracts
- Learning unit covers dismissals and alternative ways of terminating employment contracts
- Refer to page 23 of the module (MO)
- Thematic focus: termination of employment (excluding dismissal)
- Core reading material: Chapters 7, 8, & 9
- Additional resource: Schedule 8 - Code of Good Practice: Dismissal
LO1: Termination of Employment Contracts (Other Than Dismissal)
-
Termination through employee resignation:
- Unilateral decision communicated to employer (verbally or in writing)
- Cannot be withdrawn without employer consent
- Resignation period in line with BCEA; may involve paid time off; or payment in lieu of notice (sections 37 and 38).
- Refer to SAMWU case (page 91) for resignation withdrawal limitations
- Employer must formally accept resignation; assumption of resignation insufficient .
- Employee who doesn't show up for work after the period of resignation, employer must still follow procedure to terminate contract.
- Employee should still be afforded the opportunity to explain their absence.
- Employee must clearly resign for it to be considered a lawful resignation.
- Refer to Quinn case (page 91)
-
Termination upon completion of project/task/period:
- Fixed-term contracts that end on a specified date/event/project completion
- Mutual agreement: both parties mutually agree to end the employment contract. Notice period must be agreed upon (page 92 provides an example).
-
Termination due to employee's incapacitation of performance of work:
- Impossibility of fulfilling contractual obligations
- Employer can terminate based on this.
-
Termination due to employer insolvency:
- Insolvency Act and LRA regulations
- Employee salary is considered a preferential claim
- The employment contract is suspended for 45 days pending liquidator decision
-
Termination due to employee retirement:
- No universal retirement age
- Agreement, workplace practice, pension fund rules are required to be adhered to.
- Refer to Karan case (page 94).
- "Procedurally fair" dismissal is not automatically unfair dismissal
LO2: Definition of "Dismissal" Under the Labour Relations Act (LRA)
- Refer to section 186(1) of the LRA
- A breakdown method is provided in the notes to explain sections.
LO3: Types of Dismissals under Section 186(1) of LRA
- Termination by employer with or without notice
- Employer refusal/failure to renew fixed-term contract or to appoint employee indefinitely
- Refusal to allow employee return to work after maternity leave
- Selective re-employment
- Constructive dismissal
- Constructive dismissal based on section 197 and 197A of the LRA
LO4: Fair Dismissal under the LRA
- Misconduct by the employee
- Employee's incapacity
- Operational requirements
- Refer to chapter 9, pages 148 - 154 for more details
LO5: Substantive and Procedural Fairness
- Substantive fairness (page 125):
- Code of Practice (Schedule 8 of the LRA)
- Employee conduct and expected workplace behaviour
- Misconduct
- Procedural steps to consider
- The fairness of the dismissal decision
- Code of Practice (Schedule 8 of the LRA)
- Procedural fairness (page 129):
- Importance of procedural fairness,
- Providing a fair process to the employee
- Example in the notes showing substantively fair dismissals
LO6: Substantive Fairness in Dismissals (Misconduct, Operational Requirements, Incapacity)
- Detailed requirements for substantive fairness regarding dismissal due to various issues are explained,
- Questions to ascertain whether dismissal is “fair”
- Specific aspects like; Team misconduct and misconduct outside working hours
LO7: Procedural Fairness in Dismissals (Misconduct, Incapacity)
- Employee must be provided with correct information.
- Procedures for dealing with misconduct or incapacity-related dismissals.
- Employees given the opportunity to have input on alternative resolutions should be provided with such opportunity.
- If dismissal is required, employees should be given the correct time to prepare and reasons.
LO8: Unfair and Automatically Unfair Dismissals
- Section 187 automatically unfair dismissals
- Employer actions contrary to the employee's rights (freedom of association, participation in protected activities, discrimination, etc.)
- Section 188 of LRA defining unfairly dismissed situations
- Distinction between unfair dismissal (Section 188 of the LRA) and automatically unfair dismissals (Section 187 of LRA)
LO9: Identifying Automatically Unfair Dismissal According to Section 5 of the LRA
- Importance of understanding employees' rights under section 5.
- Explanation of employee protection regarding trade unions, workplaces, and proceedings
LO10: Role of CCMA and Labour Court
- The CCMA's role in resolving labour disputes, including unfair dismissals
- The role of the Labour Court in reviewing CCMA decisions
LO11: Conciliation, Mediation, and Arbitration
• Conciliation’s purpose is to help conflicting parties reach agreement • Mediation is a similar process but can more actively facilitate agreement between disputing parties • Arbitration is more like resolving a dispute in a courtroom instead of a negotiation
- Differences between Conciliation, Mediation, and Arbitration
- Their roles and when they need to be used in labour disputes
LO12: Unfair Dismissal Dispute Process
- Required steps and documents to follow for an unfair dismissal dispute
LO13: Jurisdiction of the Courts in Labour Disputes
- Labour Court's functions; reviewing decisions of the CCMA
- High Court of Appeal’s role in challenging Labour Court decisions
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