Chapter 6: Automatically Unfair Dismissals
Areas of Focus:
The 9 reasons that make a dismissal automatically unfair.
Introduction:
Nine Reasons -> difficult, eclectic list from all over labour law, may pop up in any given
•
case.
1. Infringement of Section 5 of the LRA (Freedom of Association)
2. Participation in a protected strike
3. Refusal to do the work of a protected striker
4. Refusal to accept a demand about a matter of mutual interest
5. Exercise of Rights
6. Pregnancy
7. Unfair Discrimination
8. Transfer of Business in terms of Section 197 of LRA
9. Protected disclosure in terms of PDA, 2000.
• Important first of all to understand onus of proof and causation
◦ Whenever employee alleged automatic unfairness, employer will counter with possibly
fair reasons such as misconduct, incapacity, or operational requirements
◦ This raises two questions
▪ Who has to prove what where the Courts place an evidential burden on the
employee to raise credible possibility of automatic unfairness then the employer
has to prove the reason was fair
▪ Causation, where the court has to decide what the real reason of the dismissal
was, the court will look at factual causation (sine qua non) and legal causation for
the dismissal.
◦ If the reason is automatically unfair, the employee wins.
◦ If the reason is possibly fair, then it will only be found to be fair if the employer met the
requirements.
• Labour Court has jurisdiction -> compensation may be up to 24 months' compensation.
Note -> the detail in the chapter is not the most important, rather know the list and be
able to recognise and briefly discuss the reasons in relation to a set of facts.
, Reason 1 -> Infringement on Section 5 of the
LRAThis section deals mainly with the freedom of association -> the employer may not in any
•
way victimise or prejudice an employee for exercising the fundamental right to freedom of
association
◦ If there has been a dismissal in this regard it is automatically unfair.
• Section 4 of the LRA -> protects the right of employees and job applicants to form, join
and to participate in the lawful activities of a trade union.
• Section 5 of the LRA -> protects employees from dismissal and victimisation because of
their trade union activities
◦ Also protects employees for exercising any right conferred by the LRA or for
participating in any proceedings provided for by the LRA such as those wider than the
scope of trade union activities.
• Typical Examples:
◦ Managers becoming involved in union affairs -> conflict of interest issues
◦ Shop stewards misbehaving -> shop stewards are persons elected by workers to
represent them in dealings with management.
• Note -> the overlap with Section 187(1)(d) which makes a dismissal for exercising your
rights automatically unfair.
• Managers:
◦ Freedom of association in terms of joining unions pretty much absolute.
◦ Should be careful with respect to what the do
▪ As employees they owe the employer a duty to act in good faith.
◦ In case of conflicts of interest -> may lead to fair dismissal for misconduct or
incapacity.
Independent Municipal & Allied Trade Union & Others v Rustenburg Transitional Council
• The employer had adopted a resolution barring senior employments from serving in
executive positions in trade unions and participating in trade union activites.
• The Court said that an employee cannot be punished for playing a leading role in a union
but the employee's position in the union does not entitle them to do their managerial work
poorly
• A manager who becomes a union leader enters a minefield of conflicting interests but the
LRA does not prohibit this
• One ought to consider that failing to act within the obligations one has to their employer
as an employee may constitute misconduct or incapacity.
Reason 2 -> Participation in a Protected Strike
2
Areas of Focus:
The 9 reasons that make a dismissal automatically unfair.
Introduction:
Nine Reasons -> difficult, eclectic list from all over labour law, may pop up in any given
•
case.
1. Infringement of Section 5 of the LRA (Freedom of Association)
2. Participation in a protected strike
3. Refusal to do the work of a protected striker
4. Refusal to accept a demand about a matter of mutual interest
5. Exercise of Rights
6. Pregnancy
7. Unfair Discrimination
8. Transfer of Business in terms of Section 197 of LRA
9. Protected disclosure in terms of PDA, 2000.
• Important first of all to understand onus of proof and causation
◦ Whenever employee alleged automatic unfairness, employer will counter with possibly
fair reasons such as misconduct, incapacity, or operational requirements
◦ This raises two questions
▪ Who has to prove what where the Courts place an evidential burden on the
employee to raise credible possibility of automatic unfairness then the employer
has to prove the reason was fair
▪ Causation, where the court has to decide what the real reason of the dismissal
was, the court will look at factual causation (sine qua non) and legal causation for
the dismissal.
◦ If the reason is automatically unfair, the employee wins.
◦ If the reason is possibly fair, then it will only be found to be fair if the employer met the
requirements.
• Labour Court has jurisdiction -> compensation may be up to 24 months' compensation.
Note -> the detail in the chapter is not the most important, rather know the list and be
able to recognise and briefly discuss the reasons in relation to a set of facts.
, Reason 1 -> Infringement on Section 5 of the
LRAThis section deals mainly with the freedom of association -> the employer may not in any
•
way victimise or prejudice an employee for exercising the fundamental right to freedom of
association
◦ If there has been a dismissal in this regard it is automatically unfair.
• Section 4 of the LRA -> protects the right of employees and job applicants to form, join
and to participate in the lawful activities of a trade union.
• Section 5 of the LRA -> protects employees from dismissal and victimisation because of
their trade union activities
◦ Also protects employees for exercising any right conferred by the LRA or for
participating in any proceedings provided for by the LRA such as those wider than the
scope of trade union activities.
• Typical Examples:
◦ Managers becoming involved in union affairs -> conflict of interest issues
◦ Shop stewards misbehaving -> shop stewards are persons elected by workers to
represent them in dealings with management.
• Note -> the overlap with Section 187(1)(d) which makes a dismissal for exercising your
rights automatically unfair.
• Managers:
◦ Freedom of association in terms of joining unions pretty much absolute.
◦ Should be careful with respect to what the do
▪ As employees they owe the employer a duty to act in good faith.
◦ In case of conflicts of interest -> may lead to fair dismissal for misconduct or
incapacity.
Independent Municipal & Allied Trade Union & Others v Rustenburg Transitional Council
• The employer had adopted a resolution barring senior employments from serving in
executive positions in trade unions and participating in trade union activites.
• The Court said that an employee cannot be punished for playing a leading role in a union
but the employee's position in the union does not entitle them to do their managerial work
poorly
• A manager who becomes a union leader enters a minefield of conflicting interests but the
LRA does not prohibit this
• One ought to consider that failing to act within the obligations one has to their employer
as an employee may constitute misconduct or incapacity.
Reason 2 -> Participation in a Protected Strike
2
