In terms of Labour Law, there is a difference between the termination of an employment contract and the concept of dismissal. An employee claiming unfair dismissal must establish the existence of dismissal, and it is the onus of the employee to prove the existence of a dismissal, which is not necessarily unfair.
Any form of dismissal must be procedurally and substantively fair, and focus is placed on the following six examples in terms of the meaning of dismissal.
Termination of employment by the employer, with or without notice
This is the most commonly understood form of termination of employment, which the employer initiates. Initially, the law only made provision for the “termination of a contract of employment” but has been adjusted accordingly to ensure that it is not the contract being terminated but the termination of the employment.
Because the definition of dismissal refers to the termination of employment, it is possible for there to be a dismissal before the employee commences work for the employer. The definition of an employee in Section 213 of the Labour Relations Act refers to a person who works for another person. This was interpreted to mean that a person was not an employee unless he had commenced work.
The above-mentioned is, however, incorrect. In terms of Wyeth SA (Pty) Ltd v Manqele & others [2005] 6 BLLR 523 (LAC), it has been established that a party to a contract of employment may claim unfair dismissal if the employer terminates a contract of employment before the employee commencing work.
Refusal or failure by an employer to renew a fixed-term contract
In this context, dismissal means that an employee reasonably expected the employer:
- To renew a fixed-term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms; or
- To retain the employee in employment indefinitely, but the employer offered to retain the employee on less favourable terms or did not offer to retain the employee.
Not every termination of a fixed-term contract is a dismissal. In SA Rugby (Pty) Ltd v CCMA & others [2006] 1 BLLR 27 (LC), the Labour Court held that for an employee to establish a reasonable expectation of renewal of a contract, the employee was required to establish the following:
- The subjective expectation that the employer would renew the fixed-term contract on the same or similar terms;
- The expectation was reasonable; and
- The employer did not renew the contract or offered to renew it on less favourable terms.
Therefore, the renewal had to be objectively determined as stipulated above, and the Labour Appeal Court agreed that none of the employees could prove the above.
Refusal to allow an employee to resume work after maternity leave
An employee is entitled to maternity leave of at least 4 (four) months, and should an employer refuse an employee to return to work after such leave; it would amount to a dismissal.
An employee must adhere to section 25 of the Basic Conditions of Employment Act and cannot take more days’ leave as prescribed in Section 25; otherwise, it could be regarded as an unauthorised absence. Considering the above, if the reason for dismissal is pregnancy or any reason related to pregnancy, the dismissal is automatically unfair.
Selective re-employment
Selective dismissal means that an employer who dismissed several employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another.
Employers who effect group dismissals and then wish to re-engage some of the dismissed employees face a simple choice: re-employ none of the dismissed employees or, by re-employing even one of them, face the prospects of an unfair dismissal claim by those left out in the cold. The Labour Relations Act clearly stipulates in f section 186(2)(c) that a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement is unfair labour practice.
Constructive dismissal
An employee may terminate a contract of employment with or without notice (for example, by resigning) because the employer made continued employment intolerable for the employee.
This form of dismissal, which is called constructive dismissal, is triggered by a resignation. In Murray v Minister of Defence [2008] 6 BLLR 513 (SCA), the court emphasised that it is not sufficient for an employee to resign because work has become intolerable. This could, after all, be because of factors unconnected to the employer, or the employer may have a good and fair reason to make work intolerable.
The test is whether the conduct lacked reasonable and proper cause and that there is no requirement that the employer must have wanted or intended to get rid of the employee.
If a constructive dismissal is established, this does no more than establish the existence of dismissal for the Act. Suppose the employee establishes a constructive dismissal, the onus shifts to the employer to prove the fairness of the dismissal. If the employer discharges this obligation, the dismissal is not unfair.
Transfer of a business
Dismissal in this sense means that an employee ended a contract of employment with or without notice. This could be because the new employer, after a transfer in Section 197 or 197A of the Act, provided the employee with conditions or circumstances that are substantially less favourable to the employee than those provided by the old employer.
If a transfer of a business occurs, the new owner must comply with the terms and conditions of the employment contract from the previous owner/business. The employee must prove that his conditions or circumstances at work are less favourable after the transfer.
In conclusion, from the above, it should be clear to all employers that dismissals may take various forms within the workplace. There are other forms of termination as well, but it cannot be classified as a dismissal.
In the event that you contemplate dismissing an employee or have conducted yourself personally to what is explained above, please contact your SEESA legal advisor for more information and guidance on this topic. Alternatively, leave your contact details on our website, and we will contact you.
About The Author:
Werner van Vuren started his career at SEESA in August 2019. He is currently a Labour Legal Advisor at SEESA’s Pretoria Head Office. Werner passed all four of his admission exams and obtained his LLB degree.
Resources:
- Labour Relations Act 66 of 1995 (as amended);
- Basic Conditions of Employment Act No 75 of 1997’
Law@Work, 5th Ed, Lexis Nexis SA.