Unfair dismissal South African labour law

1 unfair dismissal

1.1 termination of employment contract
1.2 failure renew fixed-term contract
1.3 dismissal reasons relating pregnancy
1.4 selective re-employment
1.5 constructive dismissal
1.6 transfer of employment contracts

unfair dismissal

only employees have right not unfairly dismissed; non-employees enjoy no such protection. labour relations act s approach unfair dismissal may summarised in following 3 questions:

the employee has onus establish there has in fact been dismissal. if discharged, onus shifts employer, prove fairness of dismissal.

dismissal describes termination of employment relationship employer, or without notice. can entail

that employee reasonably expected employer renew fixed-term contract of employment on same or similar terms, employer offered renew on less favourable terms, or did not renew @ all; or
that employer refused allow employee resume work after took maternity leave in terms of law or collective agreement, or in terms of contract of employment.

an employer has dismissed number of employees same or similar reasons, offers re-employ 1 or more of them, while refusing re-employ another, have dismissed latter.

the statutory definition recognises constituting dismissal circumstances in employee terminates employment relationship. known constructive dismissal.

where, example, employee terminates contract of employment, or without notice, because employer has made continued employment intolerable him, have been constructively dismissed.

an employee may regarded having been constructively dismissed if terminates contract of employment, or without notice, because new employer, after transfer of business going concern, provided him conditions or circumstances @ work substantially less favourable provided former employer.

termination of employment contract

section 186(1)(a) of labour relations act refers standard form of dismissal. either employee given notice of termination, or contract of employment terminated way of summary termination. note, again, employees may dismissed.

the requisite period of notice may expressly stated in contract itself, in terms of statute such basic conditions of employment act, or in terms of collective agreement. in terms of basic conditions of employment act,

one week s notice required in first 6 months of employment;
two weeks notice if employee has been employed more 6 months less year; and
four weeks notice if has been employed more year.

summary termination employer may justified if employee has committed serious or fundamental breach of material term of contract.

in csir v fijen, employee , employer had quarrelled during negotiations, employee declaring relationship finished, , employer interpreting resignation. employee subsequently denied having resigned; meant, argued, working relationship had become intolerable. court held that, in absence of clear , unambiguous intention quit, there not have been proper resignation. employer, therefore, mistaken in interpretation of words.

there indications, in ouwehand v hout bay fishing, employee retrenched. representations made him should find other work. stopped going work, therefore, on assumption had been dismissed. court, however, held had resigned, because onus on employee show has been dismissed. employee in case did not discharge onus.

when dismissal may effected question of practical importance. relates question regarding commencement of employment: commence when contract concluded, or rather when employee starts working? difficulty there may significant lapse of time between these 2 events.

the labour court held, in whitehead v woolworths, that, qualify employee, insufficient employee prove contract of employment had been concluded. conclusion of contract merely gives rise contractual claims; not confer status of employee or employer on parties purposes of labour relations act. in terms of definition, waglay aj found,

a person employee when such person works person. employee must therefore have rendered service services not [sic] of independent contractor. in addition working employee must receive or entitled receive remuneration. remuneration referred must correspondingly mean remuneration work done or tendered done.

two subsequent decisions of labour court, in jack v director-general, department of environmental affairs , wyeth sa v manqele, have taken different approach.

the rights , remedies of job applicant considered in jack, employer breached contract not allowing party commence work on agreed date. labour court, having examined question of whether or not there employment relationship between parties, decided that, once parties have reached agreement on essential terms of contract, binding , enforceable.

in wyeth, employer , employee had concluded written contract on 15 march providing employee commence work on 1 april. before work commenced, employer informed employee no longer prepared employ him. labour court held term employee in labour relations act encompasses person has concluded contract work, , such person enjoy protection against unfair dismissal. in line purposive interpretation of definition of employee.

the employment relationship wider employment contract. while contract of employment foundation of relationship, relationship may begin before employee commences working, , may endure time after contract has been terminated. ought noted that, although abscondment employee constitutes breach of contract, not bring contract end. when employer accepts employee s repudiation of contract may said there has been dismissal.

in cases, employment relationship terminated neither employer nor employee, operation of law. occurs, example, when employee s residence or work permit expires, , called automatic dismissal.

failure renew fixed-term contract

the employee must have reasonable expectation fixed-term contract renewed. bears onus of proving expectation of continued or permanent employment reasonable. test objective, inquiring whether or not reasonable person anticipate renewal in such circumstances.

in addition, employer must have created impression such expectation justified. following among ways in employer or representative may create such impression:

by past renewals of fixed term contracts;
by making representations employee contract renewed; and
by assuring employee contract renewed.

there must, then, form of prior promise or past practice. offer on less favourable terms subject reasonable-expectation test.

in sa rugby v ccma, coach of team indicated players had plans them. when came choosing side, however, of players not sent training, , therefore ineligible renewal of contracts. held coach s representations players such had reasonable expectation of renewal.

what reasonable expectation of permanent position? in dierks v unisa, employee had been employed means of series of fixed-term contracts. argued had been unfairly retrenched, , entitled permanent position. important draw distinction between employee s 2 expectations:

the court held section 186(1)(b) relates first expectation only, labour court later found, in mcinnes v technikon natal, decision in dierks had been incorrect. took view focus should on nature of expectation, , whether or not in circumstances expectation reasonable. in casu, employee genuinely believed doing same work before, difference being appointment in future permanent. in case, similar terms referred included reasonable expectation of permanent employment on similar terms.

the uncertainty continued auf der heyde v university of cape town, labour court accepted approach in dierks correct, , section 186(1)(b) did not include reasonable expectation of permanent employment. case, however, went on appeal, judge found unnecessary in circumstances decide issue.

dismissal reasons relating pregnancy

the basic conditions of employment act provides 4 months maternity leave, not require paid. possible, however, employee make claim in terms of unemployment insurance (uif) act. individual or collective agreements may provide paid maternity leave.

an important concession in basic conditions of employment act no employee may expected work first 6 weeks after birth of baby, midwife or medical practitioner may certify fit work if employee wishes so. employer s refusal allow employee return work after has been on maternity leave (paid or unpaid) fall within ambit of dismissal purposes of labour relations act. if employee not return work within period permitted, viewed abscondment, in case normal sanctions apply.

selective re-employment

in sense, in cases of selective re-employment, employment relationship continues after employment contract has been terminated. 3 elements essential:

constructive dismissal

the essential feature of constructive dismissal employee terminates employment contract. resignation not entirely voluntary, however, brought or necessitated actions or omissions of employer. these actions must intolerable. employee, in resigning, indicates have carried on work indefinitely had not intolerable situation been created.

in considering whether or not there has in fact been constructive dismissal, courts ask following questions:

did employee intend bring end employment relationship? here 1 must factual context. if employee signs resignation letter, such intention present. if employee have resigned anyway, without intolerable circumstances, may not claim circumstances decisive factor. time frame, too, important: if employee resigns months after isolated incident, case less credible if had done immediately. not automatically discredited, however; situation must viewed whole. subsequent conduct, accumulative effect intolerable, must considered.
was working relationship objectively intolerable no longer possible employee work there? must viewed in light of objective reasonable-person test. intolerable conduct conduct beyond norm. curse , swear in particular environment may acceptable, example, , therefore not in intolerable. misrepresentations made employer considered intolerable, withholding employee s salary or claiming deductions without prior written consent; so, too, making of threats, , abuse or violent behaviour, on part of employer. furthermore, if employee denied use of company car, when such required job, , contract provides one, count intolerable. on other hand, mere request employer keep costs low not intolerable; nor absence of immediate employment opportunities, or displeasure employer s management style.
did employer create intolerable situation? intolerable situation must linked conduct of employer.
is situation endure longer period of time? depends on circumstances of case.
was termination option available employee? must reasonable option, , employee must first have tried other possible dispute-resolution options: lodging grievance, example, , giving employer chance respond.

transfer of employment contracts

this relatively new form of statutory dismissal, added in terms of 2002 amendment lra. if business transferred, employees must transferred it, , employed on same or similar terms , conditions. failure on part of new employer constitutes dismissal.