Labour law | Automatically unfair dismissals

By Carol Tissiman

If you are interested in this topic, take a look at our University of Cape Town (Law@Work) Practical Labour Law course.

What is an automatically unfair dismissal?
There are some reasons for which employees may never be fired, under any circumstances. An automatically unfair dismissal is any dismissal that is made on these impermissible grounds. The grounds that are considered automatically unfair are listed in section 187 of the Labour Relations Act.

What reasons for dismissal are unfair?
If an employee is dismissed directly for any of the following reasons, the dismissal is automatically unfair. Employees cannot be dismissed:

1. For participating in a legal strike
2. For refusing to do another striking employee’s work
3. For not accepting employers’ demands if the dismissal is used as a means to get compliance
4. For acting against the company, while complying with the LRA
5. For being pregnant or for matters relating to the pregnancy
6. On arbitrary grounds like on race, religion, sex, age and any of the other constitutionally protected categories. The only exceptions are if the employee has reached retirement age, or if the dismissal is based on the inherent requirements of the job (e.g. somebody who has become blind cannot work as a bus driver).
7. Because the company’s ownership was transferred or sold as a going concern 
8. Because of a protected disclosure made by the employee, known as “whistle blowing"
   
   

Contested cases
If an employee alleges that they have been unfairly dismissed and the employer contests this, a court must discern the primary or main reason for dismissal. If a union member was dismissed for gross misconduct, for example, the court must decide which was the primary motivating reason – the membership or the misconduct. If it is the former, the employee must be compensated. However, employees don’t become immune from dismissals simply if they join unions, are pregnant, become disabled, speak a different language or for any other reason listed above. They cannot be fired purely on these grounds.

Compensation
If it is discovered that an employee was unfairly dismissed, the employee may be given the choice either to be reinstated, or to receive compensation (generally double the amount that is given for other  types of unfair dismissals).

Carol Tissiman is a professional HR Consultant, and the course convener for the 8-week online UCT (Law@Work) Practical Labour Law Course. The course introduces the key areas of applicable South African Labour Law, and focuses on the practical application of good business practice, procedure and governance in the workplace aimed at getting the best out of staff while staying within the Law.

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