Study Unit 7 Part 1

Question 1

Unfair dismissal

What are the 2 requirements governing dismissal?

Answer 1

1.Substantive Fairness
2.Procedural Fairness

Question 2

Unfair dismissal

what are the 3 requirements for a dismissal to be substantively fair?

Answer 2

1.Misconduct
2.Incapacity
3.Operational Requirements
>The LRA also recognizes “automatically unfair reasons”, which constitute automatically unfair dismissals (AUD)

Question 3

Types of unfair dismissals

what is termination with/without notice?

Answer 3

-where the employer terminates the
contract on notice or terminates the contract summarily
- employer engaged in act that brings contract to an end
-Iit can constitute a dismissal should the employer terminate a contract after the conclusion of the contract of employment, but before the employee commences with
employment [Wyeth v Manqele]

Question 4

Types of Unfair dismissals

what circumstances does a refusal to renew a fixed-term contract arise?

Answer 4

• A – employee had a reasonable expectation that employer would renew fixed term contract on same or similar terms
• B - employee had a reasonable expectation that employer would retain employee permanently on same terms but employer did not retain or offered to retain on less favourable terms

Question 5

Types of Dismissal

What must an employee establish to determine whether there was a reasonable expectation of renewal?

Answer 5

1.there was a reasonable expectation of renewal or indefinite employment
2.the employer failed to renew or offer indefinite employment or offered to renew/offered indefinite employment on less favourable terms

Question 6

what factors did the SA Rugby v CCMA case establish regarding a reasonable expectation for renewal?

Answer 6

1.A subjective expectation that the employer would renew the fixed-term contract
2.The expectation was reasonable+the employer didn’t renew the contract/offered to renew it on less favourable terms

Question 7

Types of unfair dismissal

what is refusal to allow an employee to return to work after maternity leave?

Answer 7

Employees entitled to maternity leave ito of the BCEA
-Therefore employer cannot contract on terms that violate the right to
maternity leave
- dismissal applies in circumstances where employee wants to resume work after maternity leave but is prevented from doing so
-If dismissed for pregnancy or reason related to pregnancy= automatically
unfair dismissal,

Question 8

Types of Unfair dismissal

what is selective re-employment?

Answer 8

-where employer who dismissed a
number of employees for the same or similar reason offered to re-employ some but not others
2 Requirements for unfair dismissal
1.There must have been a prior dismissal of 2 or more employees
2.There must have been a subsequent offer to reemploy certain of those dismissed employees at the
exclusion of others

Question 9

Types of Unfair dismissal

what is constructive dismissal?

Answer 9

-employee resigns, with or without notice, because employment has been made intolerable
-Regarded as dismissal as employer’s actions “forces” the employee to resign
-Triggered by resignation

Question 10

Types of Unfair dismissal

How is it determined that an employee has been constructively dismissed?

Answer 10

-objective approach=conduct of employer is relevant
-Strict test= act of resignation should be
an act of last resort when no alternatives remain

Question 11

Types of Unfair Dismissal

What did the Murray v Minister of Defence case state regarding constructive dismissal?

Answer 11

The employer must be culpably responsible for the intolerable conditions and the employers conduct lacked reasonable and proper cause
-No requirement that the employer hmust have wanted to remove the employee

Question 12

What are the relevant considerations to determine constructive dismissal?

Answer 12

1.employee must have
terminated the contract
2.employers conduct does not have to
amount to repudiation
3.situation must have become objectively
unbearable
4.employee must show that he/she
would not have resigned had it not been for employers conduct
5.employee must have exhausted all other remedies

Question 13

Other forms of termination that are not dismissal

1.what is resignation?
2.What is effluxion of time?
3.What is reaching retirement age?
4.what is insolvency?
5.what is mutual agreement?
6.what is death?
7.what is supervening impossibility of performance?

Answer 13

1.A unilateral act by an employee that terminates the contract of employment
2.Contract of employment terminates on a fixed date/occurence of a specific event
3.A contract automatically expires once an employee reaches their retirement age
4.Contract of employment only terminate by act of the trustee/liquidator/auto termination (after 45 days)
5.Employee+employer agree to terminate contract by mutual consent
6.Contract of employment terminates on death of either party
7.a contract may terminate when performance of that contract becomes impossible

Question 14

How is the date of dismissal determined?

Answer 14

-earlier of date on which the contract of employment was terminated; or
-the date the employee left the service

Question 15

what is the date of dismissal if there was termination on notice?

Answer 15

earlier of date of expiry of the notice; or date employee is paid alloutstanding salary

Question 16

Dispute Resolution

what is dispute resolution process for unfair dismissals?

Answer 16

-Disputes about unfair dismissal must be referred to the CCMA or
a bargaining council in 30 days for conciliation after the date of dismissal
-If the dispute was not resolved during conciliation, the dispute must be referred to the CCMA or bargaining council in 90 days for arbitration

Question 17

Dispute Resolution

what is the role of the labour court in unfair dismissals?

Answer 17

Automatically unfair dismissals and dismissal on grounds of operational requirements are referred to the Labour Court for adjudication within 90 days if conciliation fails

Question 18

Dispute Resolution

who bears the onus in dismissal disputes?

Answer 18

1.Onus on employee to establish that there was a dismissal
2.Onus on the employer to establish the fairness of the dismissa(substantive and
procedural on balance of probabilities)

Question 19

Dispute Resolution

what is the reasonable commissioner test in unfair dismissal disputes ?

Sidumo v Rusteburg Platinum Mines

Answer 19

-The commissioners sense of fairness trumps the employers view
-BUT commissioner is not free to impose any sanction if in the employers position
-commissioner must ask whether the employers decision to dismiss was fair> value judgment-regarding interests of employer+employee

Question 20

Remedies for Unfair Dismissal

what are the 3 remedies for unfair dismissal?

s193(1) of the LRA

Answer 20

1.Reinstatement
2.Re-employment
3.Compensation

Question 21

Remedies for Unfair dismissal

what is the difference between re-instatement and re-employment?

Answer 21

1.Re-instatement is that the period of service between the employer+employee is unbroken and requires the employer to place the employee in the position they were in prior to dismissal
2.Re-employment- The employee is hired again

Question 22

Remedies for unfair dismissal

when will re-instatement and re-employment not be awarded?

Answer 22

1.Employee doesn’t want to be re-instated/re-employed
2.Circumstances make continued emloyment intolerable
3.not reasonablly practical to re-instate the employee
4.dismissal is unfair only because employer didn’t follow a fair procedure

Question 23

Remedies for unfair dismissal?

How is compensationa remedy for an unfair dismissal?

Answer 23

Compensation Must be just and equitable
* Period: maximum of 12 mths and
maximum of 24 mths for Automatic unfair dismissals

Question 24

Remedies for unfair dismissal

what are the guidelines for appropriate compensation according to the Smit v Kit Kat Group case?

Answer 24

-nature+seriousness of injria
-circum. surrounding infringement
-behaviour of the defendent
-extent of plaintiff’s humilation
-abuse of the parties relationship
-attitude of the defendent after the injuria occured

Question 25

Remedies for unfair dismissal case Law

what did the Booi v Amathole district case state regarding re-instatement+re-employment?

Answer 25

In cases of unfair dismissal, a court or arbitrator must consider the intolerability of the working relationship before ordering reinstatement

Question 26

Automatically Unfair Dismissals

what are AUD’s?

Answer 26

-Dealt with in section 187 of the LRA
Lists a number of reasons for dismissal, which if established are regarded as automatically unfair
-At face value it could be a dismissal for one of two reasons (a permissible reason, as well as a non-permissible reason)
-Courts will interrogate facts to determine main reason for dismissal

Question 27

Automatically Unfair Dismissals

who bears the onus of proof in AUD disputes?

Answer 27

1.Onus of proof on Employee:
* Must establish existence of dismissal; and
* Establish a prima facie case or raise a credible possibility that an automatically unfair reason was the main reason for dismissal
2.Onus of proof on Employer:
* Show that reason for dismissal was fair -did not fall within circumstances in section 187

Question 28

Automatically Unfair Dismissals

what are the different forms of AUDs?

Answer 28

1.Dismissals contrary to section 5
2.Participation in a protected strike
3.Refusal to do work normally done by
striking workers
4.Employees refusal to accept a demand in
respect of any matter of mutual interest
5.Dismissal for exercising any right
onferred by the LRA
6.Pregnancy, intended pregnancy or any
reason related to pregnancy
6.Unfair Discrimination
7.A transfer contemplated by
section 197
8.A dismissal in breach of the PDA

Question 29

Automatically Unfair Dismissals Case Law

what did the TFD Network Africa (Pty) Ltd v Faris case state regarding AUDS?

Answer 29

the employer dismissed her based on incapacity. However, the court found that the dismissal was actually automatically unfair because it was based on religion. She said she couldn’t work on Saturdays due to her religion

Question 30

Automatically Unfair Dismissal Case Law

what did the Legal Aid SA v Jansen case state regarding AUD’s?

Answer 30

A dismissal of an employee who suffers from a mental condition, of which the employer is aware, for misconduct in circumstances where the acts of misconduct are inextricably intertwined with the employee’s conduct constitutes an automatically unfair dismissal and unfair discrimination