Written by Christinne van der Walt
16 January 2024
The employer-employee relationship, in its most basic form, can be described as the employee trading his or her time for the payment of a salary by the employer. The employer further has the opportunity to compartmentalise the employee’s allocation of time towards performing specific tasks like attending meetings, delivering services, or implementing protocols.
Many factors may influence the employer-employee relationship. Employees may sometimes find the employer’s demands and work description to be unfair, a feeling that is often further exasperated when an employee is dismissed on grounds that did not really contribute to the performance or delivery of services to the employer.
In this article, we will be discussing automatic unfair dismissal, the legislation that protects the employee against an automatic, unfair dismissal in situations where an employer wants to get rid of an employee as well as what an employee can do in such a situation.
WHAT IS AN AUTOMATIC UNFAIR DISMISSAL?
An automatic unfair dismissal is a dismissal that has no justification and amounts to an infringement of the worker’s fundamental rights.
A dismissal is automatically unfair if the employer acts contrary to Section 187, read with Section 5 of the Labour Relations Act 66 of 1995 (hereafter the Labour Relations Act). Section 5 of the Labour Relations Act focuses on the protection of the employee and persons seeking employment, while Section 187 focuses on automatically unfair dismissals. In this regard, South Africans can rest assured that there is provision made for their safety as employees or as persons seeking employment in our country’s legislation.
WHEN IS A DISMISSAL UNFAIR?
It is important to note that the onus of proof is on you to prove that the dismissal was automatically unfair and does not stem from your employer or anyone else. Section 187 dictates that any form of dismissal taken on one of the following points will be unfair:
(a) If you indicated that you would like to participate in or support a strike or protest in accordance with Chapter IV of the Labour Relations Act, your dismissal will be automatically unfair.
Please note that the strike or protest needs to be lawful and will only be lawful if it complies with Chapter IV of the Labour Relations Act.
(b) When you refused to do work or indicated that you would not like to do work that should have been done by another employee who was partaking in a strike at that time, the strike complying with Chapter IV (thus a lawful strike), or when that employee was locked out. If you are then let go of, it will be seen as automatically unfair.
It is worth noting that you cannot, however, refuse to do work that is necessary to prevent actual danger to life, personal safety, or your or someone else’s health.
(c) Your employer tried to compel you to accept a demand in which you and your employer have a mutual interest, such as accepting shares or buying stock in another company, which will then benefit both of you and will not necessarily be lawful.
(d) As an employee, you wanted to or did take action against your employer by exercising any right regarding the Labour Relations Act or participating in any proceedings listed in the Labour Relations Act. This can be arbitration proceedings or any proceeding in the Labour Court going forward.
(e) Your employer wanted to terminate your employment because of pregnancy, your intention of becoming pregnant, or any other reason that could relate to pregnancy, such as going to the doctor for a follow-up or having to take maternity leave.
(f) When your employer unfairly discriminated against you, either directly or indirectly, on any arbitrary ground, including, but not limited to, your race, gender, sex, ethnic or social origin, the colour of your skin, sexual orientation, age, any disability you might have, your religion, conscience, any beliefs, political opinion, culture, language, marital status, or family responsibility.
(g) Anything regarding Section 197 or 197A of the Labour Relations Act. This can include things such as when the business you are working for receives a new owner and they bring you a new job offer. They are not allowed to give you a less favourable job offer than the previous one you had at that company.
(h) A contravention of the Protected Disclosures Act, 2000, by the employer, on account of you as the employee having made a protected disclosure as defined in the Protected Disclosures Act.
WHAT CAN I DO IF I HAVE BEEN UNFAIRLY DISMISSED?
Employees who wish to challenge the fairness of their dismissals should pursue internal remedies before raising a claim under the Labour Relations Act. In the absence of internal remedies, an employee may request the CCMA or a bargaining council with jurisdiction to conciliate the dispute within 30 days of the date of the dismissal or the employer’s final decision to dismiss or uphold the dismissal.
If you suspect your employer or future employer is contravening any of the above sections listed in Section 187 or any other section listed in the Labour Relations Act, it is advisable that you consult an attorney.
Contact one of Burger Huyser Attorneys’ specialised labour attorneys to guide you through the legal intricacies and proceedings related to unfair dismissals.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
