Topic 5: Automatically Unfair Dismissals PDF

Topic 5: Automatically Unfair Dismissals **Note to Reader: it's unnecessary to know all the detail in this chapter. Know the list (9 reasons) & put yourself in a position to recognise & briefly discuss them in relation to a set of facts.** [Introduction ] - The basic concept underpinning an aut...

Topic 5: Automatically Unfair Dismissals **Note to Reader: it's unnecessary to know all the detail in this chapter. Know the list (9 reasons) & put yourself in a position to recognise & briefly discuss them in relation to a set of facts.** [Introduction ] - The basic concept underpinning an automatically unfair dismissal is that, if one of them was the reason for dismissal, there has been infringement of a basic human right and there won't be any doubt the dismissal was unfair.[^1^](#fn1){#fnref1.footnote-ref} - **S187** provides the following 9 reasons as being automatically unfair reasons for dismissal: 1. An infringement of S5 of the LRA (freedom of association). 2. Participation in a protected strike. 3. Refusal to do the work of another employee participating in a protected strike. 4. The refusal of a demand concerning a matter of mutual interest between employer & employee. 5. Exercising, or indicating intention to exercise, any right conferred by the Act or instituting proceedings in terms of the Act. 6. Pregnancy. 7. Discrimination. 8. Transfer of business in terms of S197 of the LRA (Chapter 10 in the textbook).[^2^](#fn2){#fnref2.footnote-ref} 9. Protected Disclosures made in terms of the Protected Disclosures Act.[^3^](#fn3){#fnref3.footnote-ref} - **Onus in cases of automatically unfair dismissal:** The employee carries the initial evidential burden and must do more than establish the mere existence of a dismissal in terms of S192(1); they must adduce evidence which raises a credible possibility that an automatically unfair dismissal has taken place (*De Beer v SA Export Connection CC t/a Global Paws*).[^4^](#fn4){#fnref4.footnote-ref} If established, employer can't defend the termination by proving that the alleged automatically unfair reason was fair (exception -- discriminatory dismissals). Employer must prove that the alleged reason was not the actual reason for dismissal, but that dismissal was for another fair reason. If the dismissal was based on alleged discrimination, the employer may have a defence in terms of S187(2).[^5^](#fn5){#fnref5.footnote-ref} - **Dominant/Proximate Cause:** the first inquiry in automatically unfair dismissal cases is into the real reason for the dismissal. The Court held in *SA Chemical Workers Union & Others v Afrox Ltd*[^6^](#fn6){#fnref6.footnote-ref} that this was a question of causation, involving the normal twofold approach to causation -- firstly the question of *factual* causation and then the question of *legal* causation: 1. Factual causation: would the dismissal have occurred without the alleged automatically unfair reason? Was this reason a sine qua non (prerequisite) for the dismissal? If yes, then the dismissal wasn't automatically unfair. 2. Legal causation: if the answer in (1) is no, the dismissal is not rendered automatically unfair -- instead it must be investigated whether the alleged reason was the main/dominant/most likely cause of the dismissal. There are no hard and fast rules here, but the Court suggested that it should be determined what the most probable inference is that may be drawn from the established facts as a cause of dismissal in the same way plausible inference is drawn from circumstantial evidence in civil cases. [Reason 1: Infringement of S5 of the LRA ] - A dismissal will be automatically unfair if an employer acts contrary to S5 of the LRA, which protects the freedom to association.[^7^](#fn7){#fnref7.footnote-ref}Freedom of association is a fundamental right enjoying constitutional protection (S18 & S23) and similarly to S187(1), S5(2)(c)(vi) and (vii) prohibit the dismissal of an employee for the exercise of any right in the LRA or instituting proceedings in terms of it.[^8^](#fn8){#fnref8.footnote-ref} The effect is that an employer can't victimise or prejudice an employee or prospective employee for exercising their fundamental right to freedom of association. - The mere fact that an employee, dismissed for misconduct, was a shop steward[^9^](#fn9){#fnref9.footnote-ref} is not enough and will only be automatically unfair if the fact that he was a shop steward was the proximate cause of his dismissal or materially influenced the decision to dismiss. - Real conflicts may arise if a senior manager employee is also an office bearer of a trade union as the senior employee may have access to confidential information which may influence collective bargaining. [Reason 2: Participation in a Protcted Strike ] - S187(1)(a) protects employees who participate in, or support, a protected strike/protest which is a strike/protest that complies with Chapter IV of the LRA. This doesn't preclude an employer from fairly dismissing an employee for misconduct they participated in during a protected strike/protest, or for operational requirements.[^10^](#fn10){#fnref10.footnote-ref} - In the *Sa Chemical Workers' Union & Others v Afrox* case, *supra*, employees went on strike because employer instituted new shift system. The employer argued they had been dismissed for operational reasons (obviously incurred because of the strike) and not for participating in the strike. Court noted employer may, in certain cases, dismiss for operational reasons during a strike, but that the operational reasons must be the dominant cause.[^11^](#fn11){#fnref11.footnote-ref} - In *NUMSA & Others v Dorbyl Ltd & Another* the Court applied the *Afrox* test held that, although participation in the strike contributed to, or accelerated, the dismissals they weren't the dominant cause as the need to retrench predated the strike. - Criminal activity (damage to employer's property or assault on co-employees) justifies a dismissal for misconduct.[^12^](#fn12){#fnref12.footnote-ref} [Reason 3: Refusal to do the Work of Protected Strikers (Replacement Labour)] - Employers who want to keep their business running in spite of strike action try and persuade non-striking employees to do the work of their striking/locked out co-employees. If permitted this could undermine the right to strike. As such, the protection of the right to strike extends to non-striking employees who decide not to do their co-employees work as a sign of solidarity. - Replacement labour can take 2 forms: 1. Employer hires persons who aren't employees to do their work (regulated by S76 of LRA). 2. Employer requests/expects non-striking employees to do the work. - S187(1)(b) provides that a dismissal for a refusal, or intention to refuse, to do (2) is automatically unfair unless that work is necessary to prevent actual danger to life, personal safety, or health. - Nothing prevents an employee from voluntarily doing the work of a striking/protesting co-employee. [Reason 4: Reefusal to Accept a Demand About a Matter of Mutual Interest] - An employer who wants to change Ts and Cs of employment have 2 options: 1. Lock-out employees to compel them to agree to changes.[^13^](#fn13){#fnref13.footnote-ref} 2. Dismiss employees who disagree to the changes and hire people who will agree to the new Ts and Cs. Common law allows employers to do this, but the dismissal would have to be for one of the 3 fair reasons (usually the employer's operational requirements). - Thus the controversial S187(1)(c), which draws a fine line between the employer's right to dismiss for operational requirements & protection of the institution of collective bargaining. It prevents employers from using the threat of dismissal as an economic tool to gain unfair advantage during collective bargaining. - In *Fry's Metals (Pty) Ltd v National Union of Metalworkers of SA & Others*[^14^](#fn14){#fnref14.footnote-ref} Court held that S187(1)(c) wouldn't apply if purpose of the dismissal was to enable the employer to employ new employees on the proposed new Ts and Cs.[^15^](#fn15){#fnref15.footnote-ref} However, it would apply if the purpose was to force existing employees to accept the new Ts and Cs. - In essence, if the employer told employees they'd be dismissed if they didn't accept the Ts and Cs, and then after the dismissals indicated they'd take them back if the agreed to the Ts and Cs, inference can be drawn that the purpose of the dismissals was to compel them to accept the Ts and Cs and S187(1)(c) would apply. However, if the employer made no attempt after dismissal to get them back it would be inferred that they were dismissed for operational requirements and S187(1)(c) wouldn't apply.[^16^](#fn16){#fnref16.footnote-ref} - The unintended consequence of the *Algorax* and *Fry's* decisions was that employers were extremely wary to offer any form of reemployment to retrenched employees as it could be interpreted in light of S187(1)(c). The Constitutional Court considered the amendment of the section in the *Aveng Trident Steel* case, *supra*, as NUMSA challenged the fairness of the dismissals in terms of the section. The Labour Appeal Court had considered that the amendment had shifted the focus from the employer's intention in effecting the dismissal to the refusal of the employees to agree to the employer's proposals. Thus, the distinction made above between whether the dismissal was final or conditional above **has fallen away.** The question of whether the section is contravened hinges on what the true reason for the dismissals is.[^17^](#fn17){#fnref17.footnote-ref} - The section doesn't apply to disputes involving individual employees, due to the wording of the section ("*employees*") and the purpose of the section (to protect collective bargaining).[^18^](#fn18){#fnref18.footnote-ref} [Reason 5: Exercise of Rights] - S187(1)(d) protects employees against dismissal where the reason is that they exercised any right conferred by the LRA or participated in proceedings to enforce these rights, including: 1. Referring a matter to conciliation/arbitration or the Labour Court. 2. Representing a fellow employee at a disciplinary hearing. 3. Initiating litigation against the employer. 4. Exercising/enforcing rights conferred by private arbitration agreements. - Purpose of section = allow employees to exercise their rights without fear of victimisation, intimidation, or dismissal. An employer isn't allowed to use their stronger position (and the employee's fear of losing their job) to intimidate the employee into not initiating proceedings against it/exercising their rights. - The filing of a grievance against another employee doesn't constitute taking action against the employer and S187(1)(d) isn't concerned with the filing of a grievance. It is directed at situations such as employee referring a dispute to the CCMA or another governmental agency concerning the employer's conduct.[^19^](#fn19){#fnref19.footnote-ref} - Employer will usually dispute that there was a fair reason for the dismissal, usually misconduct as in *Kroukam, supra* (in this case, insubordination). As mentioned above, there's significant overlap between S187(1)(d) and S5 of the LRA. - Imperative to the enquiry into whether S187(1)(d) applies is the true reason for the dismissal and the elimination of the camouflage (the seemingly legitimate reason advanced by the employer) surrounding this true reason.[^20^](#fn20){#fnref20.footnote-ref} - In *NUPSAWU on behalf of Mani & Others v National Lotteries Board, supra,* the Court held that trade unions reserve the right to determine its own strategies and tactics in dealing with an employer concerning grievances, or complaints, disputes of rights or disputes of interests and, generally, on how grievances, complaints, negotiations, discussions and collective bargaining with an employer should be handled. These strategies fall within the union's "lawful activities" and proceedings in terms of the LRA. - In *Mashaba v Telkom SA*[^21^](#fn21){#fnref21.footnote-ref} Court affirmed established principle that shop stewards enjoy some indemnity from discipline for conduct ancillary to the exercise of their functions as representatives of their trade unions -- robust union activism is acceptable. [Reason 6: Pregnancy ] - According to S187(1)(e), an employee can't be dismissed because of her pregnancy, intended pregnancy, or any reason relating to pregnancy. Employees aren't required to disclose their pregnancy, and not disclosing their pregnancy is not deceit, nor grounds for dismissal.[^22^](#fn22){#fnref22.footnote-ref} - Changing the Terms & Conditions of employment (salary reduction or change in job description) resulting from an employee becoming pregnant is grounds for constructive dismissal.[^23^](#fn23){#fnref23.footnote-ref} - In *De Beer v SA Export Connections CC t/a Global Paws*[^24^](#fn24){#fnref24.footnote-ref} Court noted that S187(1)(e) should be seen as part of social legislation, thereby extending the meaning of "pregnancy". The court found a sufficiently close link between the mother's pregnancy and her dismissal upon request for an extension of her maternity leave to look after her colic twins to qualify as "a reason relating to pregnancy". It was also noted that a pregnant woman can't, by way of agreement, waive her minimum right to maternity leave.[^25^](#fn25){#fnref25.footnote-ref} - As with all S187(1) enquiries, the alleged automatically unfair reason (in this case pregnancy) must be determined the proximate cause of the dismissal and the usual approach to causation is followed. In the *Mashava* case (footnote 126) Court stated that the employee must discharge the evidentiary burden that the employer knew of the pregnancy and dismissal was possibly for this reason. The employer will then need to show the dismissal was, in most cases, for misconduct or for incapacity. [Reason 7: Unfair Discrimination ] - This will be dealt with extensively below under the context of the Employment Equity Act and all those principles will apply equally to S187(1)(f) which makes a discriminatory dismissal an automatically unfair dismissal. It's possible to bring both an automatically unfair dismissal claim (based on discrimination) AND a claim in terms of the EEA.[^26^](#fn26){#fnref26.footnote-ref} - Once the reason for dismissal is established as discrimination, inquiry doesn't end there because S187(2) allows an employer to show the discrimination wasn't unfair because it was based on an inherent requirement of the job, or because normal/agreed retirement age had been reached. S6 of the EEA provides for affirmative action as a defence, but this will not be a valid defence in terms of S187(1)(f). - See pages 194 -- 198 in textbook for examples of how each ground listed in the section operates. Since this is dealt with below, the focus here will be "Arbitrary ground" and the inherent requirements of the job. 16 grounds in S187(1)(f) are not a closed list, arbitrary grounds are also protected. The Labour Court adopted the test applied by the Constitutional Court when interpreting & applying the equality provisions of the Constitution. A ground will fall within S187(1)(f) if "it has the potential to impair the fundamental dignity of that person as a human being or affect him in a comparably serious manner". Depression has been held to be an arbitrary ground for automatically unfair dismissals, granted the evidentiary burden can be discharged.[^27^](#fn27){#fnref27.footnote-ref} Similarly, HIV status is an arbitrary ground.[^28^](#fn28){#fnref28.footnote-ref} - **Inherent Requirements of the Job:** onus is on employer to prove that the set requirement is indeed an inherent requirement of a specific job -- a requirement that, without, a particular job can't be done. In *Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union*[^29^](#fn29){#fnref29.footnote-ref} it was held that selecting female employees for retrenchment solely on basis that retained jobs were better suited to males would be discriminatory unless it can be proved that the job can only be done by men (being male is inherently a requirement of the job). A policy is not justified (as an inherent requirement of the job) if it restricts a practice/religious belief -- and by extension a cultural belief -- that doesn't affect an employee's ability to perform his duties, nor jeopardise the safety of other employees or the public, nor cause undue hardship to the employer in a practical sense.[^30^](#fn30){#fnref30.footnote-ref} This inherent requirement defence has been narrowly construed and relates to "an inescapable way of performing a job".[^31^](#fn31){#fnref31.footnote-ref} If the inherent requirement is shown, the employer then bears onus to show that it couldn't accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty on the employer.[^32^](#fn32){#fnref32.footnote-ref} [Reason 8: Transfer of Business (Section 197 Transfer)] - S197 & S197A provide if a business (or part of) is transferred as going concern from one employer to another, employees employed in that business (or part) will, unless otherwise agreed by these employees, be automatically transferred from employment of old employer to new employer on Ts and Cs of employment which, on the whole, must not be less favourable to them than those they enjoyed with previous employer. Employers might want to avoid this by dismissing said employees and S187(1)(g) seeks to prevent this. - S186(1)(f) further protects transferred employees by providing that if an employee resigns after a transfer because new employer offers "substantially less favourable" Ts and Cs, this will constitute a dismissal. It effectively makes it a constructive dismissal. - Employee bears onus of showing there was a dismissal and must show that the transaction underlying the dismissal falls in the ambit of S197. Employee will have to adduce evidence that the dismissal is causally linked to the transfer. Employer will then bear the usual onus of showing that this wasn't the reason for the dismissal but was instead another fair reason. - Even if the transfer itself wasn't the reason for the dismissal, the court can determine that the dismissal was used by employer to avoid its obligations under S197, making it a reason relating to the transfer and thus still automatically unfair.[^33^](#fn33){#fnref33.footnote-ref} [Reason 9: Protected Disclosure ] - This is regulated by the Protected Disclosures Act 2000. The Act defines a "disclosure" as being any disclosure of information regarding any conduct of an employer, or of an employee, or of a worker of that employer made by any employee or worker who has reason to believe that the information concerned shows or tends to show one or more of the following: 1. A criminal offence has been, will be, or is likely to be committed. 2. A person has, is, or will fail to comply with a legal obligation to which that person is subject. 3. A miscarriage of justice has, is, or is likely to occur. 4. The health/safety of a person has, is, or will be endangered. 5. The environment has, is, or will be damaged. 6. Unfair discrimination. 7. Any of the above has, is, or will be concealed. ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} This concept endorses S9, S10, & S23 of the Constitution.[↩](#fnref1){.footnote-back} ::: 2. ::: {#fn2} Extremely unlikely this will ever be asked.[↩](#fnref2){.footnote-back} ::: 3. ::: {#fn3} Discussed below under unfair labour practices.[↩](#fnref3){.footnote-back} ::: 4. ::: {#fn4} \(2008) 29 *ILJ* 347 (LC).[↩](#fnref4){.footnote-back} ::: 5. ::: {#fn5} By showing that the discrimination was based on an inherent requirement of the job or on age by retirement.[↩](#fnref5){.footnote-back} ::: 6. ::: {#fn6} \(1999) 20 *ILJ* 1718 (LAC).[↩](#fnref6){.footnote-back} ::: 7. ::: {#fn7} S4 protects the rights of employees & job applicants to from, join, & take part in the legal activities of trade unions. S5 protects employees & job applicants from dismissal & victimisation because of their trade union activities.[↩](#fnref7){.footnote-back} ::: 8. ::: {#fn8} This is wider than simply "trade union activities".[↩](#fnref8){.footnote-back} ::: 9. ::: {#fn9} A union's representative in the workplace.[↩](#fnref9){.footnote-back} ::: 10. ::: {#fn10} See S67(5) of LRA.[↩](#fnref10){.footnote-back} ::: 11. ::: {#fn11} In this case, the strike was not the proximate cause, and the dismissals weren't automatically unfair.[↩](#fnref11){.footnote-back} ::: 12. ::: {#fn12} See *National Democratic Change & Allied Workers Union & Others v Cummins Emission Solutions (Pty) Ltd* (2014) 33 *ILJ* 2222 (LC).[↩](#fnref12){.footnote-back} ::: 13. ::: {#fn13} Lock-out must comply with S64 & S65 of the LRA to be protected.[↩](#fnref13){.footnote-back} ::: 14. ::: {#fn14} \(2003) 24 *ILJ* 133 (LAC).[↩](#fnref14){.footnote-back} ::: 15. ::: {#fn15} See also *Chemical Workers Industrial Union & Others v Algorax (Pty) Ltd* (2003) 24 *ILJ* 1917 (LAC).[↩](#fnref15){.footnote-back} ::: 16. ::: {#fn16} Fromer = conditional, latter = final.[↩](#fnref16){.footnote-back} ::: 17. ::: {#fn17} In this case, the employer's intention was not to grasp an advantage in wage bargaining but to restructure for operational reasons. The employee's refusal necessitated the dismissal for these operational requirements.[↩](#fnref17){.footnote-back} ::: 18. ::: {#fn18} *Jacobson v Vitalab* (2019) 40 *ILJ* 2363 (LC).[↩](#fnref18){.footnote-back} ::: 19. ::: {#fn19} *DBT Technologies (Pty) Ltd v Garnevska* (2020) 41 *ILJ* 2078 (LAC).[↩](#fnref19){.footnote-back} ::: 20. ::: {#fn20} *De Beer v Trudon (Pty) Ltd* (2014 JDR 1463 (LC).[↩](#fnref20){.footnote-back} ::: 21. ::: {#fn21} \(2018) 39 *ILJ* 1067 (LC).[↩](#fnref21){.footnote-back} ::: 22. ::: {#fn22} *Mashava v Cuzen & Woods Attorneys* (2000) 21 *ILJ* 402 (LC).[↩](#fnref22){.footnote-back} ::: 23. ::: {#fn23} *Victor v Finro Cash and Carry* (2000) 21 *ILJ* 2489 (LC).[↩](#fnref23){.footnote-back} ::: 24. ::: {#fn24} \(2008) 29 *ILJ* 347 (LC).[↩](#fnref24){.footnote-back} ::: 25. ::: {#fn25} An agreement not to fall pregnant is also unconstitutional.[↩](#fnref25){.footnote-back} ::: 26. ::: {#fn26} These will then constitute 2 separate causes of action. S6 of the EEA will be used when the cause of action is the impairment of one's dignity manifested in some policy or practice. The cause of action for S187(1)(f) arises from the dismissal. Study this section in conjunction with the EEA section for holistic overview.[↩](#fnref26){.footnote-back} ::: 27. ::: {#fn27} *New Way Motor & Diesel Engineering (Pty) Ltd v Marsland* (2009) 30 *ILJ* 2875 (LAC). See also where the burden was not discharged in *Legal Aid SA v Jansen* (2020) 41 *ILJ* 2580 (LAC).[↩](#fnref27){.footnote-back} ::: 28. ::: {#fn28} *Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre* (2011) 32 *ILJ* 1637 (LC).[↩](#fnref28){.footnote-back} ::: 29. ::: {#fn29} \(1999) 20 *ILJ* 89 (LAC).[↩](#fnref29){.footnote-back} ::: 30. ::: {#fn30} *Department of Correctional Services & Another v POPCRU & Others* 2013 (4) SA 176 (SCA).[↩](#fnref30){.footnote-back} ::: 31. ::: {#fn31} For a broad interpretation, see *Dlamini & Others v Green Four Security* (2006) 27 *ILJ* 1098 (LC).[↩](#fnref31){.footnote-back} ::: 32. ::: {#fn32} *TFD Network Africa (Pty) Ltd v Faris* (2019) 40 *ILJ* 326 (LAC).[↩](#fnref32){.footnote-back} ::: 33. ::: {#fn33} *Van der Velde v Business and Design Software (Pty) Ltd & Another* (2006) 27 *ILJ* 1225 (LC) and the 2009 appeal at the LAC.[↩](#fnref33){.footnote-back} ::: :::