STUDY UNIT 6: Automatically unfair dismissal
MRL3702/1
, 6 STUDY UNIT 6
6 Automatically unfair dismissal
OUTCOMES
After you have completed this study unit, you should be able to:
• Define the concept “automatically unfair dismissal”.
• Explain the origin of this form of dismissal.
• Apply guidelines developed by the courts to establish the real reason for
dismissal to the facts.
• Define the term “occupational detriment”.
6.1 PRESCRIBED MATERIAL
Chapter 6 of essential labour law
6.2 GENERAL INTRODUCTION
An automatically unfair dismissal is a type of dismissal which
is automatically unfair. In other words, with this type of
dismissal the employer cannot defend the dismissal, except in
two cases which are: inherent requirements of a job and
retirement age.
Employees are therefore protected and cannot be dismissed
based on any of the reasons listed in the section. The
protection in this regard relates to some of the fundamental
rights protected by the Constitution.
This provision of the LRA therefore protects constitutional
values and Ubuntu principles relating to human dignity and
fairness.
6.3 IMPORTANT MATTERS TO UNDERSTAND
This Study Unit deals with automatically unfair dismissals.
6.3.1 The concept of automatically unfair dismissals
, STUDY UNIT 6: Automatically unfair dismissal
6.3.1.1 International labour standards Study par 6.1.1 of the
prescribed book
In the previous chapter, you learnt that employees’ protection
against unfair dismissals goes beyond South African boarders
to include ILO conventions or international law, which is part
of our law. The ILO convention 158 of 1982 do not only
protects and promotes employees’ rights and freedoms but
regard the dismissal of an employee for exercising any of
his /her rights or freedoms, an automatically unfair dismissal.
The concept automatically unfair dismissal is now adopted by
the LRA where it also enjoys an express provision.
Can you identify types of dismissals, which are automatically
unfair in terms of the ILO convention 158 of 1982?
6.3.1.2 The Constitution
Study par 6.1.2 of the prescribed book
The Constitution of South Africa is a guardian of number of
fundamental human rights and freedoms, which include
labour rights. It makes provision for everyone to a fair labour
practice. This right read with section 9 is coached generously
to ensure that all employees enjoy the equal benefit and
protection of the law without being discriminated against
directly or indirectly. These rights ensure that the dignity of
employee is promoted and protected. However, employer may
in certain instances be allowed to discriminate in order to
achieve a legitimate constitutional objective. For example, the
use of affirmative action in order to correct the imbalance of
the past as one of the goals highlighted in the preamble of the
Constitution. In this regard, the discrimination is fair.
6.3.2 Automatically unfair dismissal
Study par 6.2 of the prescribed book
This dismissal is regulated in terms of section 187 of the LRA.
The LRA defines an automatically unfair dismissal as where
the reason for dismissal is –
(a) That the employee participated in or supported, or indicated an intention
to participate in or support, a strike or protest action that complies with
the provisions of Chapter IV.
(b) That the employee refused, or indicated an intention to refuse, to do any
work normally done by an employee who at the time was taking part in a
strike that complies with the provisions of Chapter IV or was locked out,
unless that work is necessary to prevent an actual danger to life,
personal safety or health.
MRL3702/1
, (c) A refusal by employees to accept a demand in respect of any matter of
mutual interest between them and their employer.
(d) That the employee took action, or indicated an intention to take action,
against the employer by—
(i) Exercising any right conferred by this
Act; or (ii) Participating in any proceedings
in terms of this Act.
(e) The employee’s pregnancy, intended pregnancy, or any reason related to
her pregnancy.
(f) That the employer unfairly discriminated against an employee, directly or
indirectly, on any arbitrary ground, including, but not limited to race,
gender, sex, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, political opinion, culture, language,
marital status or family responsibility.
(g) A transfer, or a reason related to a transfer, contemplated in section 197
or 197A. or
(h) A contravention of the Protected Disclosures Act, 2000, by the employer,
on account of an employee having made a protected disclosure defined in
that Act. Despite subsection (1)(f)—
(i) A dismissal may be fair if the reason for the dismissal is based on an
inherent requirement of the particular job.
(j) A dismissal based on age is fair if the employee has reached the normal
or agreed retirement age for persons employed in that capacity.’
6.3.2.1 Onus in an automatically unfair dismissal
Study par 6.2.1 of the prescribed book
Where an employee alleges to have been automatically and
unfairly dismissed, the employer may rebut such allegation by
proving that the dismissal is not an automatically unfair
dismissal but rather a dismissal for misconduct, operational
requirements or incapacity and that, it was fair. In other
words, the employer cannot argue that an automatically unfair
dismissal was fair except where section 187(2)(a) of the LRA
above is applicable. That is, if the dismissal is based on
inherent requirement of the job or an employee has reached
retirement age; the employer may defend that by arguing that
it is a fair dismissal.
6.3.2.2 Dominant or proximate cause Study
par 6.2.2 of the prescribed
book
Where there appears to have been more than one reason and
thus difficult to establish which of those reasons the employer
had relied on to dismiss an employee; the courts had
MRL3702/1
, 6 STUDY UNIT 6
6 Automatically unfair dismissal
OUTCOMES
After you have completed this study unit, you should be able to:
• Define the concept “automatically unfair dismissal”.
• Explain the origin of this form of dismissal.
• Apply guidelines developed by the courts to establish the real reason for
dismissal to the facts.
• Define the term “occupational detriment”.
6.1 PRESCRIBED MATERIAL
Chapter 6 of essential labour law
6.2 GENERAL INTRODUCTION
An automatically unfair dismissal is a type of dismissal which
is automatically unfair. In other words, with this type of
dismissal the employer cannot defend the dismissal, except in
two cases which are: inherent requirements of a job and
retirement age.
Employees are therefore protected and cannot be dismissed
based on any of the reasons listed in the section. The
protection in this regard relates to some of the fundamental
rights protected by the Constitution.
This provision of the LRA therefore protects constitutional
values and Ubuntu principles relating to human dignity and
fairness.
6.3 IMPORTANT MATTERS TO UNDERSTAND
This Study Unit deals with automatically unfair dismissals.
6.3.1 The concept of automatically unfair dismissals
, STUDY UNIT 6: Automatically unfair dismissal
6.3.1.1 International labour standards Study par 6.1.1 of the
prescribed book
In the previous chapter, you learnt that employees’ protection
against unfair dismissals goes beyond South African boarders
to include ILO conventions or international law, which is part
of our law. The ILO convention 158 of 1982 do not only
protects and promotes employees’ rights and freedoms but
regard the dismissal of an employee for exercising any of
his /her rights or freedoms, an automatically unfair dismissal.
The concept automatically unfair dismissal is now adopted by
the LRA where it also enjoys an express provision.
Can you identify types of dismissals, which are automatically
unfair in terms of the ILO convention 158 of 1982?
6.3.1.2 The Constitution
Study par 6.1.2 of the prescribed book
The Constitution of South Africa is a guardian of number of
fundamental human rights and freedoms, which include
labour rights. It makes provision for everyone to a fair labour
practice. This right read with section 9 is coached generously
to ensure that all employees enjoy the equal benefit and
protection of the law without being discriminated against
directly or indirectly. These rights ensure that the dignity of
employee is promoted and protected. However, employer may
in certain instances be allowed to discriminate in order to
achieve a legitimate constitutional objective. For example, the
use of affirmative action in order to correct the imbalance of
the past as one of the goals highlighted in the preamble of the
Constitution. In this regard, the discrimination is fair.
6.3.2 Automatically unfair dismissal
Study par 6.2 of the prescribed book
This dismissal is regulated in terms of section 187 of the LRA.
The LRA defines an automatically unfair dismissal as where
the reason for dismissal is –
(a) That the employee participated in or supported, or indicated an intention
to participate in or support, a strike or protest action that complies with
the provisions of Chapter IV.
(b) That the employee refused, or indicated an intention to refuse, to do any
work normally done by an employee who at the time was taking part in a
strike that complies with the provisions of Chapter IV or was locked out,
unless that work is necessary to prevent an actual danger to life,
personal safety or health.
MRL3702/1
, (c) A refusal by employees to accept a demand in respect of any matter of
mutual interest between them and their employer.
(d) That the employee took action, or indicated an intention to take action,
against the employer by—
(i) Exercising any right conferred by this
Act; or (ii) Participating in any proceedings
in terms of this Act.
(e) The employee’s pregnancy, intended pregnancy, or any reason related to
her pregnancy.
(f) That the employer unfairly discriminated against an employee, directly or
indirectly, on any arbitrary ground, including, but not limited to race,
gender, sex, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, political opinion, culture, language,
marital status or family responsibility.
(g) A transfer, or a reason related to a transfer, contemplated in section 197
or 197A. or
(h) A contravention of the Protected Disclosures Act, 2000, by the employer,
on account of an employee having made a protected disclosure defined in
that Act. Despite subsection (1)(f)—
(i) A dismissal may be fair if the reason for the dismissal is based on an
inherent requirement of the particular job.
(j) A dismissal based on age is fair if the employee has reached the normal
or agreed retirement age for persons employed in that capacity.’
6.3.2.1 Onus in an automatically unfair dismissal
Study par 6.2.1 of the prescribed book
Where an employee alleges to have been automatically and
unfairly dismissed, the employer may rebut such allegation by
proving that the dismissal is not an automatically unfair
dismissal but rather a dismissal for misconduct, operational
requirements or incapacity and that, it was fair. In other
words, the employer cannot argue that an automatically unfair
dismissal was fair except where section 187(2)(a) of the LRA
above is applicable. That is, if the dismissal is based on
inherent requirement of the job or an employee has reached
retirement age; the employer may defend that by arguing that
it is a fair dismissal.
6.3.2.2 Dominant or proximate cause Study
par 6.2.2 of the prescribed
book
Where there appears to have been more than one reason and
thus difficult to establish which of those reasons the employer
had relied on to dismiss an employee; the courts had
