Unit 5.3

Question 1

How does section 186 of the labour relations act define a dismissal?

Answer 1

The termination of an employment contract (with or without notice)

Question 2

What is regarded as an dismissal according to s183 of LRA?

Answer 2

• Failure to renew a fixed term contract where the employee reasonably expected the contract to be renewed
• Selective re-employment of employees who were dismissed for the same reason
• Coercion or pressure on an employee which leaves him with no alternative but to resign (constructive dismissal)
• Failure to re-employ an employee who has been on maternity leave or who has been absent because of her confinement
• Resignation by an employee whose contract has been transferred to new employer and whose conditions and circumstances at work are substantially less favourable than those under the previous employer
• Failure by the employer to comply with reasonable expectations of an contract employee

Question 3

State fair reasons for dismissal according to S188 of LRA

Answer 3

It is regarded as a fair dismissal if the employer can prove that dismissal is related to:
- The conduct or capacity of the employee
- The operational requirements of the employer
- is affeced in terms of a fair procedure

Question 4

State reasons for automatic unfair dismissals according to s187 of the LRA

Answer 4

• The employee participated/intended to participate in a strike or
• Refusal to do work of another employee who took part in a strike/was locked-out, unless the work is necessary to prevent danger to life or health and safety
• When dismissal is used to compel an employee to accept a demand related to a matter of mutual interest(any issue concerning employment)
• Where the employee intended to/exercised rights conferred in the Act
• Where the employee intended/participated in proceedings in terms of the Act
• Employee’s pregnancy, intended pregnancy or reasons related to pregnancy
• Unfair discrimination
• Transfer or reason related to a transfer in terms of s197 of the LRA
• Contravention of the PDA by employer on account of an employee having made a disclosure in terms of the Act

Question 5

Discuss s197 of the LRA Transfer

Answer 5

• These transfers are bound by section 197 of the LRA places strict conditions upon employers in regard to employees’ contracts of employment. In essence, should the parties not reduce the transfer to writing in line with section 197 (6) the result is as follows:
• The new employer is automatically substituted in the place of the old employer in respect of all contracts of employment in existence immediately before the date of the transfer.
• All the rights and obligations between the old employer and employee at the time of the transfer continue in force as if they had been rights and obligations between the new employer and employee.
• Anything done before the transfer by or in relation to the old employer, including the dismissal of an employee or the commission of an unfair labour practice or act of unfair discrimination, is considered to be done by or in relation to the new employee.
• The transfer does not interrupt an employee’s continuity of employment, and the employees’ contract of employment continues with the new employer as if with the old employer.

Question 6

Disclose other unfair dismissals

Answer 6

A dismissal that is automatically unfair will be unfair if employer fails to prove that dismissal is related to
- Misconduct
- Incapacity of the employee or
- Operational requirements
- The employer must also effect the dismissals by following a fair procedure

Question 7

How can an employer prove that the dismissal is fair?

Answer 7

In order for a dismissal to be fair the employer needs to prove the following:
- Substantive fairness
- Procedural fairness

Question 8

Discuss substantive fairness (misconduct)

Answer 8

• The employee must have broken a rule of conduct
• The rule must have been valid/reasonable
• Employees should have known the rule
• Employer applied the rule consistently
• Dismissal is appropriate step in stead of less serious disciplinary actions

Question 9

Discuss Procedural fairness (misconduct)

Answer 9

• Item 4 of the Code of Good Practice provides guidelines in complying with a fair procedure
• The employee must be informed about the charges in a manner she/he can understand.
• The employee should be given sufficient time to prepare for the hearing.
• The union should be consulted before commencing an inquiry into an employee who is a shop steward or office bearer of the union.
• The employee must be given a chance to state his/her case.
• The employee has the right to be assisted by a shop steward or a fellow employee at the hearing.
• After the inquiry, the employer should notify the employee in writing of the decision with clear reasons.
• If the employee is not satisfied after being dismissed, the employer has to inform the employee of his/her right to appeal and thereafter to refer the matter to the relevant council or CCMA within 30 days or, if it is a later date, within 30 days of the making of a final decision to dismiss or uphold the dismissal.