Learning Unit 6: Automatically Unfair Dismissal Flashcards
(32 cards)
The ILO convention 158 of 1982 does not only protect and promote employees’ rights and freedoms but regard the dismissal of an employee for exercising any of his /her rights or freedoms, an automatically unfair dismissal. True or false?
True
SG page 29
Under what circumstances may an employer be allowed to discriminate?
To achieve a legitimate constitutional objective
This includes scenarios such as affirmative action to rectify past inequalities.
Is automatically unfair dismissals codified in South African law?
Yes, it is enshrined in section 187 of the LRA and provides 9 reasons that make a dismissal automatically unfair.
True or False: The Constitution allows for discrimination in all cases.
False
Discrimination is only permissible under specific circumstances that achieve legitimate objectives.
What is the purpose of the rights provided in the Constitution for (in the context of) employees?
To promote and protect the dignity of employees as Dignity is a fundamental aspect of human rights recognized in the Constitution.
What provision does the Constitution make regarding labour practices?
Everyone is entitled to a fair labour practice
Section 23 of the Constitution
What does the Constitution of South Africa protect?
Fundamental human rights and freedoms, including labour rights
The Constitution is a key legal document that outlines the rights of individuals and groups in South Africa.
What is an automatically unfair dismissal?
It is a type of dismissal that is automatically unfair. It means that the employer can’t defend the dismissal except in two cases (inherent job requirements and retirement age)
SG page 29.
What section of the Constitution ensures equal protection of the law for employees?
Section 9 which addresses equality and non-discrimination.
Where does automatically unfair dismissal originate from?
In article 5 of Convention 158 of 1982 (Termination of Employment) of the ILO.
TB page 178.
What is one example of fair discrimination mentioned in the text?
The use of affirmative action
Affirmative action aims to correct historical imbalances in society.
What can an employer do if an employee alleges automatic and unfair dismissal?
The employer may rebut the allegation by proving the dismissal was for misconduct, operational requirements, or incapacity and that it was fair.
The employer cannot argue that an automatically unfair dismissal was fair, except under specific circumstances outlined in section 187(2) of the LRA.
Under what conditions can an employer argue that an automatic dismissal is fair?
If the dismissal is based on:
* Inherent requirement of the job
* Employee has reached retirement age
These conditions provide specific defenses for employers against claims of unfair dismissal.
True or False: An employer can always claim an automatically unfair dismissal is fair.
False
Employers can only argue for fairness in specific cases as defined by law.
Fill in the blank: An employer cannot argue that an automatically unfair dismissal was _______ except where section 187(2)(a) of the LRA is applicable.
fair
This applies to specific scenarios defined in the legal framework.
What are the three reasons an employer can use to justify a dismissal that is not automatically unfair?
Dismissal for:
* Misconduct
* Operational requirements
* Incapacity
These reasons must be proven as fair by the employer.
What is the onus in proof for cases of automatically unfair dismissal as per the LRA?
There are is no specific provisions for the onus of proof of automatically unfair dismissal. There is only provision for onus of dismissals i.t.o all disputes.
What must an employee do in cases of allegedly automatically unfair dismissals according to legislation and case law?
As highlighted in the case of De Beer v SA Export Connection CC (2008), when referring to section 192(1) of the LRA, establish the existence of a dismissal and provide evidence ‘to raise a credible possibility that an automatically unfair dismissal has taken place’.
Who bears the onus to prove that a dismissal was not automatically unfair once a credible possibility is established?
The employer
This principle is supported by the Labour Appeal Court in TFD Network Africa Ltd v Paris (2019).
What does section 187(1)(f) of the LRA pertain to?
Automatically unfair dismissals on allegedly discriminatory grounds
Race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.
What potential defense can an employer have if an automaticcaly unfair dismissal is based on a discriminatory ground?
As per section 187(2), prove that the dismissal was not unfair because it was based on an inherent requirement of the job or the employee reached the normal or agreed retirement age
This applies when age is the reason for the dismissal.
True or False: The Labour Appeal Court has endorsed the view that the onus rests with the employer after the employee raises a credible possibility of an automatically unfair dismissal.
True
This was confirmed in the case of TFD Network Africa Ltd v Paris (2019).
What is the twofold inquiry developed by the courts to determine the real reason for an automatically unfair dismissal?
A factual and legal cause.
Fill in the blank: The courts developed a twofold inquiry to determine the _______ for dismissal.
[real reason]
