In this article we will divulge on the right not to be unfairly dismissed and its burden of proof.
There are three forms of dismissal: Misconduct, Incapacity, and Operational Requirements. Section 186 of the Labour Relations Act 66 of 1995 (hereafter “LRA”) expands on what a dismissal comprises of whereas Section 187 deals with what an automatically unfair dismissal is. The requirements for a dismissal based on operational requirements are envisaged in Section 189.
There are various types of terminations e.g., dismissal; expiry of the contract; resignation and retrenchment.
It is important for an employee to first prove that they have been factually dismissed before they can determine whether it was unfair or not. This is essentially a two-stage enquiry.
As per the reasoning adopted by the LAC in the SACWU v AFROX 1999[1], once the employee establishes the existence of a dismissal, then in terms of section 192(2) the onus shifts to the employer to establish that the purpose for the dismissal does not fall within the ambit of section 187(1)(c).[2]
Additional provisions relevant to the onus issue are that in terms of:
- Section 185 (a), every employee has the right not to be unfairly dismissed;
- Section 186 (1)(a), the most basic form of dismissal is when an employer terminates a contract of employment with or without notice;
- Section 187 (1)(c), it is automatically unfair to dismiss an employee in order to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
- Section 188(1)(a)(ii), a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for the dismissal is fair, based on the employer’s operational requirements.
Defences against Automatically Unfair Dismissals:
There are no specific defences against an automatically unfair dismissal however, there are exceptions.
- Section 187(2)(a): dismissal based on an inherent requirement of the job.
That is when a job requires you to physically or legally be able to perform a job which is an essential requirement and must be so closely linked to your ability to do the job, and without that, you will not be able to do the job. For example, a pilot needs their vision to see when flying an aircraft and an employer will have a defence if someone alleges unfair discrimination due to disability if there are blind.
- Section 187(2)(b): dismissal based on age is fair if the employee has reached the normal or agreed upon retirement age for persons employed.
In the case of Schweitzer v Waco Distributors (A Division of Voltex (Pty) Ltd) 1998[3], the court found that there is no dismissal when the employee reaches the agreed or normal retirement age. This would be a fair reason of dismissal.
The decision in April v Workforce Group Holdings (Pty) Ltd t/a The Workforce Group (2005)[4] raises questions around the significance that should be attached to the contract of employment in determining whether an employee has been dismissed.
Misconduct Dismissals
Dismissal for misconduct essentially envisages an employer’s legitimate loss of trust in an employee related to one or more incidents demonstrating a lack of trustworthiness on the part of the employee. The Code of Good Practice offers guidance to employers on the procedural and substantive requirements for a fair dismissal.[5]
Five questions that have to be answered in the affirmative in terms of the Code of Good Practice:
- Did the employee contravene a rule or standard regulating conduct in, or of relevance, the workplace?
- If so, was the rule valid and reasonable?
- Was the employee aware of the rule?
- Was the rule used consistently?
- Is the dismissal an appropriate action for the contravention of the rule?
The employer needs to prove the 5 questions on a basis of probabilities. The employee must have violated the rules or policies of the company, where the rules or policies are inconsistent, or it is uncertain whether the conduct of the employee constitutes breaking the rules then it should be assumed that the employee has not broken any rules.
In Sidumo v Rustenburg Platinum Mines (2007)[6] the Court held that “there is nothing in the constitutional and statutory scheme that suggests that, in determining the fairness of a dismissal, a commissioner must approach the matter from the perspective of the employer . . .”
Examples of common forms of misconduct are:
Gross negligence v negligence / gross dishonesty; Conflict of interest; Assault; Insubordination; Alcohol-related Misconduct or Intoxication and Unauthorised use of company property.
Incapacity:
Section 188 of the LRA recognises retrenchments or dismissals for operational requirements as an acceptable form of dismissal.[7] Incapacity is regulated by section 188 of the LRA, and it is defined as consisting of poor work performance and ill health or injury. Incapacity involves some form of behaviour, conduct or inability which is neither intentional nor negligent. A dismissal based on incapacity is, therefore known as a ‘no fault’ dismissal.
There are three forms:
- Poor work performance – When the employer cannot reasonably be expected to retain an employee for the period necessary for that employee to acquire the reasonable competence.
- Ill-health or disability – Usually results in poor work performance.
- Incompatibility – Relates poorly to others – Unsuitable for the type of work.
The LRA seeks to protect employees against unfair dismissals. Common law seeks to protect employees against unlawful termination. In terms of common law, an employment contract can only be terminated upon notice and acceptance by either party of the repudiation of the contract.
Operational Requirements:
Section 213 of the LRA defines operational requirements as requirements based on the economic, technological, structural, or similar needs of the employer.[8]
Failure by an employer to show that a dismissal was fair in that it was necessitated by operational requirements will result in such dismissal being substantively unfair.[9]
In CWIU & others v Algorax (Pty) Ltd 2003[10], the individual appellants were dismissed after they refused to accept a proposal by the respondent to change from a straight day shift to a rotating shift system, which required them to work some nights and on alternate weekends because at that time the night shift was staffed by contract workers. The Court held that an employer may dismiss those employees who do not satisfy the operational needs of the business if its purpose is to get rid of them permanently and replace them with others prepared to work in accordance with the employer’s operational requirements. However, where an employer wishes to retain workers who decline to satisfy its operational requirements, and then dismisses them in the hope that they will be thus induced to comply with its needs, the dismissal is for the purposes of compelling the workers to comply with a demand and is therefore automatically unfair. The critical issue is the purpose of the dismissal.
[1] SACWU v AFROX 1999 20 ILJ 1718 (LAC)
[2] Ismail, R, & Tshoose, I. (2011) “Analysing the onus issue in dismissals emanating from the enforcement of unilateral changes to conditions of employment”, Potchefstroom Electronic Law Journal (PELJ), 14(7), 147-172.
[3] Schweitzer v Waco Distributors (A division of Voltex (Pty) Ltd) [1998] 10 BLLR 1050 (LC)
[4] April v Workforce Group Holdings (Pty) Ltd t/a The Workforce Group (2005) 26 ILJ 2224 (CCMA)
[5] Du Toit et al, Labour Relations Law: A Comprehensive Guide 7th Edition, Lexis Nexis
[6] Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC)
[7] Tapiwa Gandidze, “Dismissals for operational requirements”, Law, Democracy & Development / Vol. 11 No. 1 (2007): Special Issue
[8] Tapiwa Gandidze, “Dismissals for operational requirements”, Law, Democracy & Development / Vol. 11 No. 1 (2007): Special Issue
[9] Tapiwa Gandidze, “Dismissals for operational requirements”, Law, Democracy & Development / Vol. 11 No. 1 (2007): Special Issue
[10] CWIU & others v Algorax (Pty) Ltd (2003) 24 ILJ 1917 (LAC)
Written by Erica Khanayo
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
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