Dismissal Flashcards
less favourable, or no, renewal or retention:
employer must have created reasonable expectation of renewal or retention on the same terms
SACTWU v Cadema
SA rugby Players Association v SA Rugby (pty) ltd
Selective employment:
Where employees are dismissed for the same or similar reasons, and the employer offers to re-employ one or more of the dismissed workers, but refuses to re-employ the employee in question.
Constructive dismissal:
- employer makes continued employment intolerable OR after s197A transfer, new employee conditions or circumstances are substantially less favorable.
Test: whether the employer’s overall conduct, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.
Riverview Manor v CCMA
Case law: Employee was forced to accept voluntary dismissal (constructive dismissal)
Unilong Freight Distributors v Muller
Strategic Liquor Services v Mvumbi
Case Law: When the employer is said to make the employment relationship intolerable (constructive dismissal)
Asara Wine Estates v Van Rooyen
Case Law: Sexual Harrassment
Pretorius v Britz
Female was sexually harrassed for 18 months and so handed in her resignation for constructive dismissal.
court agreed. Awarded 9mnth salary as compensation.
Automatically unfair dismissal:
- employer acts contrary to section 5 of the LRA - an employer not to discriminate against the employee for exercising LRA rights
- participating in protected strikes or protest action
- non-striking employee who refuses to substitute for a striking employee.
- refusal to accept a demand in matter of mutual interest
- pregnancy or intended pregnancy
- unfair discrimination on an arbitrary grounds
- issues relating to s197/197A transfer
- protected disclosures act
Elliot International v Veloo
Case Law: if an employee still wants to remain with their trade union but employer says no.
FAWU v The Cold Chain
This was seen as an unfair dismissal
Pregnancy or intended pregnancy case laws:
De beers v SA export Connection CC
Mashava v Cuzen and Woods Attorneys
Dismissed due to concealing facts of pregnancy.
- Dismissal automatically unfair
Wallace v Du Toit
Unfair discrimination on an arbitrary grounds
- Rool Investments v Madola
- ARB v Hibbert
- Makoti v Jesuit Refugee Service
- EWN v Pharmaco
- Department of Correctional Services v Popcru
Other unfair dismissals:
Section 188(1):
A dismissal that is not automatically unfair is unfair if the employer fails to prove that:
- the reason for the dismissal is a fair reason related to conduct, capacity
OR
dismissal procedure is fair
Grounds to justify a dismissal:
- Misconduct
- Incapacity
- operational reasons
