In addition to dismissals for misconduct, incapacity, and dismissals for operational requirements, the Labour Relations Act further provides for dismissals that are automatically unfair.
Section 187 (1) of the LRA provides that a dismissal is automatically unfair if an employer, in dismissing an employee, acts contrary to Section 5 of the Act, (which confers protections relating to the right to freedom of association and on members of workplace forums), or if the reason for the dismissal is one of the following:
a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV of the Act, which deals with industrial action and conduct in support thereof;
b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health;
c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
d) that the employee took action, or indicated an intention to take action, against the employer by-
- exercising any right conferred by this Act; or
- participating in any proceedings in terms of this Act;
e) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;
f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;
g) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or
h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.
As the name suggests, should it be proven that an employee was dismissed for any of the reasons listed in Section 187 (1) of the Act, the dismissal will be deemed automatically unfair, and an employer will not be able to raise any defence thereto. The Applicant may thereupon be awarded either reinstatement or compensation of an amount not exceeding 24 months’ salary.
It is important to note that even though an Applicant can refer a dispute to the CCMA relating to a dismissal as contained in Section 187 (1), the CCMA will only have the jurisdiction to assist the parties to reach a resolution of the matter. Unless the parties’ consent to the CCMA’s jurisdiction to arbitrate the matter, it will need to be referred to the Labour Court for adjudication. Should a matter be referred to the CCMA as a dismissal for misconduct in terms of Section 191 of the Act, a commissioner will still have a duty to determine the true nature of the matter.
In Atkins v Datacentrix (Pty) Ltd (2010) 31 ILJ 1130 (LC), the employee was dismissed for his failure to disclose during his interview his intention to undergo a gender reassignment process. The Court held that the principle or dominant reason for his dismissal was that the employer was not happy about the gender reassignment process and dismissed him for that. The Court found that the employee’s claim was one of an automatically unfair dismissal in terms of section 187 of the LRA and unfair discrimination in terms of the EEA.
Employers should, therefore, exercise extreme caution when dealing with any of the situations as listed in Section 187 (1) and seek legal advice where required.
Article by: Ilze Erasmus
Dispute Resolution Official – Port Elizabeth