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  • Writer's pictureDawie Bezuidenhout

IS MY DISMISSAL AUTOMATICALLY UNFAIR?



In any dismissal dispute it is important to take note if the dismissal will be one regarded as automatically unfair. This is a brief overview on what the Labour Relations Act considers to be dismissal that is automatically unfair.




Section 187 of the Labo ur Relations Act states that a dismissal will be automatically unfair if the employer acts contrary to section 5 of the Act (i.e. the right to freedom of association).



Therefore, you should not be dismissed for;

  1. Exercising your right to freedom of association;

  2. Participating, being a member of, becoming a member of or participating in the lawful activities of a trade union ;

  3. Participating in any proceedings in terms of the Act;

  4. Exercising any right in terms of the act; and

  5. Refusal to obey an unlawful instruction or order made by the employer

Section 187 of the Labour Relations Act contains the circumstances whereby the re


ason of the dismissal will be regarded as automatically unfair.


This includes if the employee was dismissed for the reason that the employee;


  • Is participating or supporting or indicating his/her support or intention to participate in a strike or protest actions (that is a protected strike)

    • An example of when a strike will be unprotected is when the dispute that gave rise to the strike is resolved, and the employee continues to strike.

    • It will not be automatically unfair if the employer can prove that the true reason for the dismissal was based on his or her operational requirements, misconduct and/or compliance with proper procedure.


  • Where the employee refused or indicated the intention to refuse to do any work while participating in a strike

    • unless that work is necessary to prevent an actual danger to life, personal safety or health


  • Where the employee refuses to accept a demand in respect of a matter of mutual interest between the employee and the employer;

    • Matters of mutual interest is not defined but can include terms and condition of employment, remuneration, leave and hours of work.

    • Thus, an employer cannot dismiss an employee because the employee does not want to accede to the employers demands




  • Where the employee took action or indicated the intention to take action against the employer by exercising any right provided to the employee by the Act or where the employee is participating in any proceedings in terms of the Act.


  • The employee is dismissed due to her pregnancy or intended pregnancy or any reason in relation to her pregnancy.


  • Where the employer has unfairly discriminated against the employee on any arbitrary ground

    • Race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture language, marital status or family responsibility.

    • This is not a closed list and this provision may extend to, for example, HIV Status as well as citizenship status.


  • Where the employee is dismissed due to transfer or any reason related to the transfer mentioned in section 197 or 197A or


  • The reason for the dismissal is that the employee made a protected disclosure.


Be vigilant to note that despite the above the dismissal may be fair if the reason is based on an inherent requirement of the particular job.


Note further that a dismissal is fair based on age if the employee has reached the normal or agreed retirement age. In law, there are always exceptions.


The automatically unfair reason must be the reason that is the main, primary, proximate or effective reason of the dismissal, and not the sole reason for the dismissal.


What the employee needs to prove is

1) the existence of a dismissal and

2) evidence to show a case of automatically unfair dismissal on face value.






The employer must then prove the fairness of the dismissal and it is not for the employee to prove the unfairness after he/she has proved it on face value;


“Section 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the Employer to prove the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in section 187 for constituting an automatically unfair dismissal”.



 

If you think that you may have been unfairly dismissed, please do not hesitate to contact us.



 

- Chanel Pereira

20/09/2022

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