In the Twelfth Edition of Workplace Law, John Grogan writes that Section 186(1)(a) reflects what the common law understands as a dismissal – the repudiation of the contract by the employer, or the employer’s acceptance of the employee’s repudiation.


It is important to grasp the difference between the termination of an employment relationship under the common law, as stated above, and a dismissal under the Labour Relations Act.


Under the common law, a termination not permitted by the common law is treated as a breach of repudiation of the contract, and in that sense, is “unlawful”, and entitles the employee to claim damages. Under the Labour Relations Act, however, the primary concern is not whether there was a breach of repudiation of the contract, but rather if the dismissal was “fair”.


In most cases, informing an employee that the contract of employment has, or is about to, come to an end, constitutes a dismissal, however, unless the contract is terminated summarily, the dismissal only occurs at the end of the notice period. The decision to give notice does not constitute a dismissal, and as such, cannot be subjected to the courts, until the actual dismissal has been effected.


An employer may, in terms of section 186(1)(a), terminate employment formally, by giving written notice, or in any other manner which signifies an intention on its part not to continue the contract. The courts have accepted this to be the case in a variety of situations, even where the employer purports to rely on a provision in the contract that ends it “automatically” on the occurrence of some event.


Cases also frequently arise where an employee claims to have been dismissed, but the employer claims that the employee had in actual fact resigned. The onus of proving a consensual termination rests on the employer.


Except in cases of alleged constructive dismissal, an employee who resigns has not been dismissed, due to the fact that the contract has not been terminated by the employer. Employment terminates as a result of resignation on notice when the employee’s notice expires.


Covid 19 has had a significant impact on employment in South Africa, and the world, for that matter. Many employers have been left with no option but to terminate employment contracts, due to operational requirements, which have come about as a result of the Coronavirus. On the other hand, certain employees, unable to carry out duties, due to the virus, have terminated contracts of employment by tendering their resignation notices, to potentially procure alternative employment, in an attempt to generate some form of remuneration.


It is still too soon to anticipate how the CCMA and Labour Court will handle dismissals which have come about as a result of Covid 19. It is of paramount importance that employers continue to follow the proper procedures when terminating contracts of employment, based on operational requirements, or when terminating the contract for any other reason. A mere reliance that the Coronavirus resulted in the improper procedures being followed will in all likeliness result in unfair dismissals.


Article By: Wesley Field

Dispute Resolution Official – Bloemfontein