When is it an Automatically Unfair Dismissal?

Section 187 reads as follows regarding automatically unfair dismissal:

1. A dismissal is automatically unfair if the employer, in dismissing the employee, acts
contrary to section 5 or if the reason for the dismissal is:

a) That the employee participated in or supported, or indicated an intention to participate in or support a strike or protest action that complies with Chapter IV.

b) That the employee refused or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that’s complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health.

c) To compel an employee to accept a demand in respect of any matter of mutual interest between the employer and employee

d) That the employee took action, or indicated an intention to take any action, against the employer by-

i) Exercising any right conferred by this Act or
ii) Participating in any proceedings in terms of this Act

e) The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy.

f) That the employer unfairly discriminated against an employee, directly or indirectly on any arbitrary ground including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility

g) A transfer, or a reason related to a transfer, contemplated in section197 or 197A or

h) A contravention of the Protected Disclosures Act 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.

automatically unfair dismissal

2. Despite subsection (1) (f)

a) A dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job.

b) A dismissal based on age is fair if the employee has reached the normal retirement or agreed retirement age for persons employed in that capacity.

INTRODUCTION

Section 187 lists the reasons for which an employee may not be dismissed under any circumstances – such dismissals are automatically unfair. Once it is proved that the employee is dismissed for any of the reasons specified in section187, the employer can raise no defense and the employee is entitled to reinstatement or, in exceptional cases, compensation. Victims of automatically unfair dismissals will invariably be reinstated, unless they choose compensation instead.

DISMISSALS CONTRARY TO SECTION 5

a) That the employee participated in or supported, or indicated an intention to participate in or support a strike or protest action that complies with Chapter IV.

Section 5 confers on employees a right to freedom of association and to belong to workplace fora. No employee may be dismissed for exercising these freedoms in any way – ie. For participating in the formation of a union, or joining a union and, having joined, participating in the union’s lawful activities, the election of its officials or office bearers or for standing for election for such positions. Section 5 further prohibits prejudicing employees (which clearly includes dismissing them) for failing or refusing to do anything that an employer may not lawfully require an employee to do.

STRIKE DISMISSALS

b) That the employee refused or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that’s complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health.

The LRA distinguishes between protected and unprotected strikes. Dismissal of an employee for participating in a protected strike is automatically unfair. Participants in protected strikes may, however, be dismissed for misconduct (eg. assault, intimidation) during the strike.

strike dismissals

DISMISSALS IN SUPPORT OF AN EMPLOYER’S DEMAND

c) To compel an employee to accept a demand in respect of any matter of mutual interest between the employer and employee

Employers may not threaten employees with disciplinary action if they do not comply with a demand. In terms of section 187 (1) (c) refers to employees who are threatened with dismissal or are actually dismissed for refusing to accept unilateral amendments of their terms and conditions of employment by their employers. The first question is whether an employer can effect a unilateral change without locking employees out if they refuse to accept the changes; the second question is whether employees can be dismissed for refusing to accept a change.

The first question was answered in the affirmative in ECCAWUSA & others v Shoprite Checkers t/a Krugersdorp. Faced with financial collapse before its sale as a going concern to the Shoprite group, OK Krugersdorp began consulting with its workers union. Agreement was reached that both parties would take all reasonable measures to avoid job losses. The company and the union also agreed that flexible work practices were an important component of this plan. However, when the OK introduced new and more economical shift patterns, the employees refused to accept them. The workers were then retrenched.

It is clear, then, that section 187 (1) (c) does not prevent employers from dismissing employees who refuse to accept a demand if the effect of that dismissal is to save other workers from retrenchment.

VICTIMISATION

d) That the employee took action, or indicated an intention to take any action, against the employer by-

i) Exercising any right conferred by this Act or
ii) Participating in any proceedings in terms of this Act

Section 187 (1) (d) prevents employers from instituting disciplinary action against an employee for exercising any of the copious rights conferred by the LRA, or for seeking to enforce or reporting infringements of such rights by the employer. To dismiss an employee for exercising statutory rights constitutes an automatically unfair dismissal. So, too, is it automatically unfair to dismiss an employee for attempting to exercise rights in terms of a collective agreement or grievance or disciplinary procedure.

PREGNANCY

e) The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy.

A woman may not be dismissed in any circumstances merely because she is pregnant. Dismissal of a woman who is on maternity leave (now up to four months under the new BCEA) is impermissible.

family responsibility

FAMILY RESPONSIBILITY

f) That the employer unfairly discriminated against an employee, directly or indirectly on any arbitrary ground including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility

Arbitrary ground – ie for reasons that either have nothing to do with or should not in fairness be taken into account in the assessment of an employee.

Employees claiming to be victims of automatically unfair dismissals for purposes of section 187 (1) (f) must prove two things: first, that they were discriminated against; second that the discrimination was unfair. If an employer dismisses an employee on any of the grounds listed
in section 187 (1) (f), the dismissal is discriminatory.

Examples of reported cases of automatically unfair dismissals

– A reported case of a dismissal that has been held to be automatically unfair because the employee was discriminated against on the basis of family responsibility. The employee had resigned after being transferred to night shift after returning from maternity leave. She claimed that other employees without young children could have been chosen. The CCMA agreed, holding that compelling her to work night shift had had a discriminatory effect on the employee.

– When a retirement age is agreed upon, a dismissal prior to that date based solely on the employee’s age will be automatically unfair – ie dismissal of a teacher at age 68 was deemed to be automatically unfair because it had been agreed that she would work until the age 72 years.

Prior to the employee reaching retirement age, it would be in the interest of the employer to conclude a written agreement to extend the period of employ of the employee for a further fixed term period, to avoid possible litigation by the employee.

TRANSFERS OF BUSINESSES

g) A transfer, or a reason related to a transfer, contemplated in section197 or 197A.

The contracts of employees pass automatically from one employer to another when a business or part of a business is transferred as a going concern. Section 187 (1) (g) renders a dismissal related or pursuant to a transfer of business to another may not retrench its employees if the purchaser does not wish to engage the seller’s employees.

WHISTLEBLOWERS

h) A contravention of the Protected Disclosures Act 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.

The Protected Disclosures Act 26 of 2000 protects persons, including employees, against dismissal or any prejudicial conduct if they disclose information to certain persons concerning inter alia the commission of criminal offences, miscarriages of justice, unfair discrimination and conduct detrimental to health and safety or the environment. Dismissal of employees for disclosing such information is automatically unfair.

For further information or any labour law related matters, you can contact Bernard Reisner:

W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za