Employers are often faced with the dilemma of a client demanding that an employee be dismissed or removed from their premises due to alleged misconduct committed by the employee or dissatisfaction with the services of the particular employee. On many such occasions, the employer will elect to terminate the employee in question’s services for alleged “operational requirements”.
Dismissal based on the operational requirements is defined in the Labour Relations Act as a dismissal based on the economic, technological, structural or similar needs of the employer.
The Code of Good Practice’s section on “Dismissals based on operational requirements”, describes such dismissals as “no fault dismissals”. In light hereof and because of its human cost, the LRA places particular obligations on an employer, most of which are directed toward ensuring that all possible alternatives to dismissal are explored and that the employees to be dismissed are treated fairly.
In Nape v INTCS Corporate Solutions (Pty) Ltd the Court found that the dismissal of an employee due to the demand of a third party to be substantively unfair.
An employee placed at the employer’s client, Nissan SA, sent an offensive e-mail to a colleague. The client took issue and insisted that the employee be removed from its premises. The employer (a labour broker) convened a disciplinary hearing and issued the employee with a final written warning. However, the client still refused to allow the employee to return to its premises. The employer thereafter terminated the employee’s services based on alleged “operational requirements”.
The employee claimed unfair dismissal, to which the employer argued that it had no alternative but to dismiss the employee.
The employee’s contract of employment provides that the employer was entitled to dismiss the employee “on grounds proven by the client to be reasonable and/or substantively and procedurally fair.” The contract between the employer (broker) and its client permitted the client to request an employee’s removal on any ground.
The Court however found the relationship between the broker and its client to be unlawful. Contracting parties cannot structure their relationship in such a manner as to undermine the fundamental guarantees afforded by the LRA. The Court concluded that any provision in a contract between a broker and its client in violation of the LRA’s provision would be deemed to be against public policy, and hence unenforceable. The court was of the view that brokers are not powerless when forced by their clients to treat their employees unfairly – brokers may in such situations approach a competent court to order the client to refrain from such conduct.
Article by: Rolien Velloen
CEO Dispute Resolution Official – Pretoria