DISMISSAL IN GENERAL
Section 185 (a) of the LRA - every employee has the right to not be unfairly dismissed. A dismissal can be fair,
unfair, or automatically unfair. The definition of dismissal indicates what actions performed by the employer
would bring the employment relationship to an end. If an employee alleges that the termination amounts it
unfair dismissal, he must prove that he:
Is an employee (in order to fall under the protective scope of the LRA)
Was dismissed (in terms of the one of the actions listed in section 186)
Burden of proof then shifts to employer, who must prove that the dismissal was not unfair. To do this is by
providing:
That there was a fair reason for the dismissal (substantive fairness)
That a fair procedure was followed (procedural fairness)
"Dismissal" means that:
a) an employer has terminated a contract of employment with or without notice
b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same
or similar terms but the employer offered to renew it on less favrouble terms, or did not renew it
c) an employer refused to allow an employee to resume work after she took maternity leave in terms of any
law, collective agreement or her contract of employment
d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-
employ one or more of them but has refused to re-employ another
e) an employee terminated a contract of employment with or without notice because the employer made
continued employment intolerable for the employee
f) an employee terminated a contract of employment with or without notice because the new employer, after
a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at
work that are substantially less favrouble to the employee than those provided by the old employer
DEFINITION OF DISMISSAL
Termination of a contract by the employer with/out notice
“N is caught red handed stealing – after disciplinary – dismissed with one month notice, instead of allowing
him to work, he is paid out for the month”
Normal/ most common form of dismissal. The notice periods referred to in this section refer to the minimum
requirements for such periods in terms of the BCEA. Whether it was fair or not, is a separate enquiry that will
be answered with reference to the requirements of substantive and procedural fairness
Where the employee committed a serious breach of contract, the employer may terminate the contract
summarily, immediately (without notice) despite the fact that the employee will forfeit his notice, when
summarily dismissed, the employee must still get an opportunity to be heard
, Refusal/failure by the employer to renew a fixed term contract
If an employee reasonably expects the employer to renew a fixed term contract of employment on the same
or similar terms, but the employer offers to renew it on less favrouble terms, or does not renewal it at all, this
will constitute a dismissal.
The main question is such a situation will revolve around whether the employers conduct created a reasonable
expectation that the fixed term contract would be renewed. Examples of conduct that would create such a
reasonable expectation are previous renewals or assurance of renewal.
Refusal to allow an employee to resume work after maternity
If an employer refuses to allow an employee to resume work after having taken maternity leave, the refusal
(termination) will qualify as a dismissal. In terms of the BCEA, an employee is entitled to four consecutive
months (unpaid) maternity leave. This specific part of the definition of dismissal is an indication of the strong
protection afforded by the LRA to female employees whose job security is jeopardised during maternity leave.
This is also in line with the ILO Convetion 183 on maternity protection. It is important to read this definition of
dismissal against the backdrop of the definition of “automatically unfair dismissals” which defines a dismissal
relating to pregnancy as automatically unfair.
Selective re-employment
Where an employer dismissed a number of employees for the same/similar reasons, and offers to re-
employee one or more of them, but refuses to re-employee another, this will constitute in dismissal. This type
of dismissal will not necessarily be unfair. If an employer retrenched employees, and the financial position of
the business improves, the employer may re-employ some of the employees. It will not be unfair selective re-
employment as long as the employer followed a fair procedure and can justify the selection of re-employment.
Constructive dismissal
Where an employee resigns because the employer made continued employment intolerable for the employee,
it will constitute a dismissal, better know as a constructive dismissal. Although the employee (and not the
employer) terminates the contract, it was not done voluntarily. The employers conduct made it impossible for
the employee to continue working for the employer
The following three elements must be present to succeed with a claim of constructive dismissal:
The employee must show that he resigned
The employee must show that the reason for resignation was that continued employment became
intolerable
The employee must show that it was the employers conduct that created the intolerable circumstan
Less favrouble terms after the transfer of business. Also a form of constructive dismissal. This part of the
definition of dismissal should be read in conjunction with section 197 and 197A of the LRA, which were
designed specifically to protect the interest of employees who are transferred between employers. If the
employee resigns because condition/circumstances at work under the new employer are substantially less
favrouble than under the previous employer, such a termination will constitute dismissal.
Section 185 (a) of the LRA - every employee has the right to not be unfairly dismissed. A dismissal can be fair,
unfair, or automatically unfair. The definition of dismissal indicates what actions performed by the employer
would bring the employment relationship to an end. If an employee alleges that the termination amounts it
unfair dismissal, he must prove that he:
Is an employee (in order to fall under the protective scope of the LRA)
Was dismissed (in terms of the one of the actions listed in section 186)
Burden of proof then shifts to employer, who must prove that the dismissal was not unfair. To do this is by
providing:
That there was a fair reason for the dismissal (substantive fairness)
That a fair procedure was followed (procedural fairness)
"Dismissal" means that:
a) an employer has terminated a contract of employment with or without notice
b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same
or similar terms but the employer offered to renew it on less favrouble terms, or did not renew it
c) an employer refused to allow an employee to resume work after she took maternity leave in terms of any
law, collective agreement or her contract of employment
d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-
employ one or more of them but has refused to re-employ another
e) an employee terminated a contract of employment with or without notice because the employer made
continued employment intolerable for the employee
f) an employee terminated a contract of employment with or without notice because the new employer, after
a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at
work that are substantially less favrouble to the employee than those provided by the old employer
DEFINITION OF DISMISSAL
Termination of a contract by the employer with/out notice
“N is caught red handed stealing – after disciplinary – dismissed with one month notice, instead of allowing
him to work, he is paid out for the month”
Normal/ most common form of dismissal. The notice periods referred to in this section refer to the minimum
requirements for such periods in terms of the BCEA. Whether it was fair or not, is a separate enquiry that will
be answered with reference to the requirements of substantive and procedural fairness
Where the employee committed a serious breach of contract, the employer may terminate the contract
summarily, immediately (without notice) despite the fact that the employee will forfeit his notice, when
summarily dismissed, the employee must still get an opportunity to be heard
, Refusal/failure by the employer to renew a fixed term contract
If an employee reasonably expects the employer to renew a fixed term contract of employment on the same
or similar terms, but the employer offers to renew it on less favrouble terms, or does not renewal it at all, this
will constitute a dismissal.
The main question is such a situation will revolve around whether the employers conduct created a reasonable
expectation that the fixed term contract would be renewed. Examples of conduct that would create such a
reasonable expectation are previous renewals or assurance of renewal.
Refusal to allow an employee to resume work after maternity
If an employer refuses to allow an employee to resume work after having taken maternity leave, the refusal
(termination) will qualify as a dismissal. In terms of the BCEA, an employee is entitled to four consecutive
months (unpaid) maternity leave. This specific part of the definition of dismissal is an indication of the strong
protection afforded by the LRA to female employees whose job security is jeopardised during maternity leave.
This is also in line with the ILO Convetion 183 on maternity protection. It is important to read this definition of
dismissal against the backdrop of the definition of “automatically unfair dismissals” which defines a dismissal
relating to pregnancy as automatically unfair.
Selective re-employment
Where an employer dismissed a number of employees for the same/similar reasons, and offers to re-
employee one or more of them, but refuses to re-employee another, this will constitute in dismissal. This type
of dismissal will not necessarily be unfair. If an employer retrenched employees, and the financial position of
the business improves, the employer may re-employ some of the employees. It will not be unfair selective re-
employment as long as the employer followed a fair procedure and can justify the selection of re-employment.
Constructive dismissal
Where an employee resigns because the employer made continued employment intolerable for the employee,
it will constitute a dismissal, better know as a constructive dismissal. Although the employee (and not the
employer) terminates the contract, it was not done voluntarily. The employers conduct made it impossible for
the employee to continue working for the employer
The following three elements must be present to succeed with a claim of constructive dismissal:
The employee must show that he resigned
The employee must show that the reason for resignation was that continued employment became
intolerable
The employee must show that it was the employers conduct that created the intolerable circumstan
Less favrouble terms after the transfer of business. Also a form of constructive dismissal. This part of the
definition of dismissal should be read in conjunction with section 197 and 197A of the LRA, which were
designed specifically to protect the interest of employees who are transferred between employers. If the
employee resigns because condition/circumstances at work under the new employer are substantially less
favrouble than under the previous employer, such a termination will constitute dismissal.
