Employees have a right not to be unfairly dismissed in terms of the Labour Relations Act 66 of 1995 as amended, hereinafter referred to as the Act.
A dismissal in terms of the Act means:
that an employer has terminated an employment contract with an employee with or without notice; or
the employer in a case where the employee reasonably expected the employer to renew a fixed term contract of employment, on the same or similar terms - offered to renew the employment contract on less favourable terms, or did not renew it at all; or
the employer, after the employee took maternity leave in terms of any law, collective agreement or employment contract refused to let an employee resume work; or
after a number of employees were dismissed for the same or similar reasons - the employer only re-employed one or more of the employees, but has refused to re-employ another, or
the employee terminated work due to the employer making work intolerable for the employee, this is also known as constructive dismissals; or
fter a transfer of an employment contract (Section 197 of the Act), i.e after the sale of a business, the employee terminated the contract because the new employer does not provide the employee with the same conditions or circumstances as the original employer.
Automatically unfair dismissals
Some dismissals by the employer, based on the following reasons, are viewed as automatically unfair:
Where an employee participated in or supported a legal strike or protest action (this does not mean that an employer cannot dismiss an employee, who partakes in a legal strike for misconduct during the strike, or for reasons based on the employers operational requirements);
where an employer dismisses an employee because the employee refused, or indicated that they refuse to do work normally done by an employee who at the time was taking part in a legal strike, unless the work is necessary to prevent an actual danger to life, personal safety or health;
where an employer dismisses the employee in order to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
where the employee indicated that they would take action or had taken action against the employer or by exercising any legal right or participation in any proceedings, in terms of this Act by the employee;
any dismissal relating to the employees pregnancy, intended pregnancy, or pregnancy related issue;
any unfair discrimination by the employer however a dismissal may be fair if the reason for the dismissal is based on the inherent job requirements or if the employee has reached the normal age of retirement for persons employed in that capacity;
any transfer of an employment contract in terms of Section 197 of the Act;
where an employee made a protective disclosure as defined in terms of this Act and where this disclosure causes the employer to contravene the Protective Disclosures Act, 2000.
Other unfair dismissals
When a dismissal is not automatically unfair, it is still unfair if an employer fails to prove that the reason for the dismissal is a fair reason relating to the employees conduct or capacity or that it is based on the employers operational requirements, and that the dismissal was effected in accordance with a fair procedure.
When one considers whether or not the reason for a dismissal was a fair reason, the Act stipulates that the relevant code of good practice, issued in terms of this Act, must be taken into account.
By: Martin Vermaak - Attorney
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