Can the dismissal of an individual employee be deemed an automatically unfair dismissal in terms of section 187(1)(c) of the LRA?

Section 187(1)(c) of the LRA provides that a dismissal will be automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer.

 

In the recent decision of Jacobson, Merwyn Jack v Vitalab (JS1042/19) [2019] ZALCJHB 157; (2019) 40 ILJ 2363 (LC), the Labour Court considered whether section 187(1)(c), as amended, applied to the dismissal of an individual employee who refused to change a condition of employment. The Applicant, Jacobson, was employed as a doctor in a private practice in Johannesburg. He claimed that his dismissal should be considered as automatically unfair as his employer dismissed him after he refused to sign a restraint of trade agreement. This claim was considered by the Cape Town Labour Court which handed down its judgment in December 2019. The judgment confirmed that an individual employee is not entitled to rely on section 187(1)(c) of the LRA.

 

In deciding the issue, the Labour Court explored the history of the wording of section 187(1)(c) of the LRA, the subsequent amendments to the section, and the explanatory memorandum that accompanied the Amendment Bill in 2014.

 

Before the amendment of section 187(1)(c), it provided that it was automatically unfair to dismiss an employee if the reason for the dismissal was to compel the employee to accept a demand in respect of a matter of mutual interest between employer and employee. After the amendment, the section states that a dismissal is automatically unfair if the reason is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer.

 

According to the Explanatory Memorandum that accompanied the Amendment Bill, the purpose of the amendment was to protect the integrity of the process of collective bargaining under the LRA. The amendment refers to more than one employee which demonstrates that the prohibition only applies when employers seek to force employees to accept a demand. After the LRA amendments, section 187(1)(c) now refers to “employees” as opposed to “employee”.

 

The court in Jacobson, Merwyn Jack v Vitalab, therefore held that section 187(1)(c) cannot be relied on by individual employees. From the wording of the amended section 187(1)(c) and its purpose, the application of the section is limited to the collective sphere. It is designed to ensure that collective bargaining is not undermined.

 

Based on the abovementioned decision it is clear that section 187(1)(c) only applies where: an employer makes a demand; more than one employee is involved; the employees refuse to accept the demand made; and as a result, they are dismissed. When the four elements listed above are present, a dismissal in terms of section 187(1)(c) may be deemed an automatically unfair dismissal. Therefore, section 187(1)(c) does not find any application in a dismissal dispute concerning an individual employee.