Chapter VIII: Unfair Dismissal

185. Right not to be unfairly dismissed

Every employee has the right not to be unfairly dismissed.

186. Meaning of dismissal

"Dismissal" means that-

1. an employer has terminated a contract of employment with or without notice;
2. 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 did not renew it;

3. an employer refused to allow an employee to resume work after she-

   1. took maternity leave in terms of any law, collective agreement or her contract of employment; or

   2. was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;

4. an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
5. an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.

187. Automatically unfair dismissals

1. A dismissal is automatically unfair if the employer, in dismissing the employee , acts contrary to section 5 (Section 5 confers protections relating to the right to freedom of association and on members of workplace forums.) or, if the reason for the dismissal is-

1. 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;

   (Chapter IV deals with industrial action and conduct in support of industrial action. Section 67(4) or (5) provide-
   "(4) An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike.
   (5) Subsection (4) does not preclude an employer from fairly dismissing an employee in compliance with the provisions of Chapter VIII for a reason related to the employee's conduct during the strike, or for a reason based on the employer's operational requirements ."

   Section 77(3) provides-
   "A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67.")

2. 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;
3. to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;

4. that the employee took action, or indicated an intention to take action against the employer by-

   1. exercising any right conferred by this Act; or

   2. participating in any proceedings in terms of this Act;

5. the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy;
6. 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.

2. Despite subsection (1)(f)-

1. a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;
2. a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

188. Other unfair dismissals

1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove-

1. that the reason for dismissal is a fair reason-

   1. related to the employee's conduct or capacity; or

   2. based on the employer's operational requirements; and

2. that the dismissal was effected in accordance with a fair procedure.

2. Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act .(See Schedule 8, the Code of Good Practice: Dismissal.)

189. Dismissals based on operational requirements

(View the Code of Good Practice on Dismissal based on Operational Requirements)

1. When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements , the employer must consult-

1. any person whom the employer is required to consult in terms of a collective agreement ;
2. if there is no collective agreement that requires consultation, a workplace forum , if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum;
3. if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals;
4. if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.

2. The consulting parties must attempt to reach consensus on-

1. appropriate measures-

   1. to avoid the dismissals;
   2. to minimise the number of dismissals;
   3. to change the timing of the dismissals; and

   4. to mitigate the adverse effects of the dismissals;

2. the method for selecting the employees to be dismissed; and
3. the severance pay for dismissed employees.

3. The employer must disclose in writing to the other consulting party all relevant information, including, but not limited to-

1. the reasons for the proposed dismissals;
2. the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;
3. the number of employees likely to be affected and the job categories in which they are employed;
4. the proposed method for selecting which employees to dismiss;
5. the time when, or the period during which, the dismissals are likely to take effect;
6. the severance pay proposed;
7. any assistance that the employer proposes to offer to the employees likely to be dismissed; and
8. the possibility of the future re-employment of the employees who are dismissed.

4. The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3).

5. The employer must allow the other consulting party an opportunity during consultation to make representations about any matter on which they are consulting.

6. The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing.

7. The employer must select the employees to be dismissed according to selection criteria-

1. that have been agreed to by the consulting parties; or
2. if no criteria have been agreed, criteria that are fair and objective.

190. Date of dismissal

1. The date of dismissal is the earlier of-

1. the date on which the contract of employment terminated; or
2. the date on which the employee left the service of the employer.

2. Despite subsection (1)-

1. if an employer has offered to renew on less favourable terms, or has failed to renew, a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract;
2. if the employer refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work;
3. if an employer refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee.

191. Disputes about unfair dismissals

See flow diagrams Nos. 10 , 11 , 12 and 13 in Schedule 4.

1. If there is a dispute about the fairness of a dismissal , the dismissed employee may refer the dispute in writing within 30 days of the date of dismissal to-

1. a council , if the parties to the dispute fall within the registered scope of that council; or
2. the Commission, if no council has jurisdiction.

2. If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the 30-day time limit has expired.

3. The employee must satisfy the council or the Commission that a copy of the referral has been served on the employer.

4. The council or the Commission must attempt to resolve the dispute through conciliation.

5. If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved-

1. the council or the Commission must arbitrate the dispute at the request of the employee if-

   1. the employee has alleged that the reason for dismissal is related to the employee's conduct or capacity, unless paragraph (b)(iii) applies;
   2. the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable; or

   3. the employee does not know the reason for dismissal; or

2. the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is-

   1. automatically unfair;
   2. based on the employer's operational requirements ;
   3. the employee 's participation in a strike that does not comply with the provisions of Chapter IV; or
   4. because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.

6. Despite subsection (5)(a), the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-

1. the reason for dismissal;
2. whether there are questions of law raised by the dispute;
3. the complexity of the dispute;
4. whether there are conflicting arbitration awards that need to be resolved;
5. the public interest.

7. When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations.

8. The director must notify the parties of the decision and refer the dispute-

1. to the Commission for arbitration; or
2. to the Labour Court for adjudication.

9. The director's decision is final and binding.

10. No person may apply to any court of law to review the director's decision until the dispute has been arbitrated or adjudicated, as the case may be.

11.

1. The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.
2. However, the Labour Court may condone non-observance of that timeframe on a good cause shown.

192. Onus in dismissal disputes

1. In any proceedings concerning any dismissal , the employee must establish the existence of the dismissal.

2. If the existence of the dismissal is established, the employer must prove that the dismissal is fair.

193. Remedies for unfair dismissal

1. If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may-

1. order the employer to reinstate the employee from any date not earlier than the date of dismissal;
2. order the employer to re-employ the employee , either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
3. order the employer to pay compensation to the employee.

2. The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-

1. the employee does not wish to be reinstated or re-employed;
2. the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
3. it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
4. the dismissal is unfair only because the employer did not follow a fair procedure.

3. If a dismissal is automatically unfair or, if a dismissal based on the employer's operational requirements is found to be unfair, the Labour Court in addition may make any other order that it considers appropriate in the circumstances. (The Court, for example, in the case of a dismissal that constitutes an act of discrimination may wish to issue an interdict obliging the employer to stop the discriminatory practice in addition to one of the other remedies it may grant.)

194. Limits on compensation

1. If a dismissal is unfair only because the employer did not follow a fair procedure, compensation must be equal to the remuneration that the employee would have been paid between the date of dismissal and the last day of the hearing of the arbitration or adjudication, as the case may be, calculated at the employee's rate of remuneration on the date of dismissal. Compensation may however not be awarded in respect of any unreasonable period of delay that was caused by the employee in initiating or prosecuting a claim.

2. The compensation awarded to an employee whose dismissal is found to be unfair because the employer did not prove that the reason for dismissal was a fair reason related to the employee's conduct, capacity or based on the employer's operational requirements , must be just and equitable in all the circumstances, but not less than the amount specified in subsection (1), and not more than the equivalent of 12 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.

3. The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.

195. Compensation is in addition to any other amount

An order or award of compensation made in terms of this Chapter is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment.

196. Severance pay

1. An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, unless the employer has been exempted from the provisions of this subsection.

2. The Minister , after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council, may vary the amount of severance pay in terms of subsection (1) by notice in the Government Gazette.

3. An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer is not entitled to severance pay in terms of subsection (1).

4. The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law.

5. An employer or a category of employers may apply to the Minister for exemption from the provisions of subsection (1) as if the application is one in terms of the Basic Conditions of Employment Act and the Minister may grant an exemption as if it were an exemption granted in terms of that Act.

6. If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to-

1. a council, if the parties to the dispute fall within the registered scope of that council; or
2. the Commission, if no council has jurisdiction.

7. The employee who refers the dispute to the council or the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

8. The council or the Commission must attempt to resolve the dispute through conciliation.

9. If the dispute remains unresolved, the employee may refer it to arbitration.

10. If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements , the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount.

197. Transfer of contract of employment

1. A contract of employment may not be transferred from one employer (referred to as "the old employer") to another employer (referred to as "the new employer") without the employee's consent, unless-

1. the whole or any part of a business, trade or undertaking is transferred by the old employer as a going concern; or

2. the whole or a part of a business, trade or undertaking is transferred as a going concern-

   1. if the old employer is insolvent and being wound up or is being sequestrated; or
   2. because a scheme of arrangement or compromise is being entered into to avoid winding up or sequestration for reasons of insolvency.

2.

1. If a business, trade or undertaking is transferred in the circumstances referred to in subsection (1)(a), unless otherwise agreed, all the rights and obligations between the old employer and each employee at the time of the transfer continue in force as if they were rights and obligations between the new employer and each employee and, anything done before the transfer by or in relation to the old employer will be considered to have been done by or in relation to the new employer.
2. If a business is transferred in the circumstances envisaged by subsection (1)(b), unless otherwise agreed, the contracts of all employees that were in existence immediately before the old employer's winding-up or sequestration transfer automatically to the new employer, but all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee, and anything done before the transfer by the old employer in respect of each employee will be considered to have been done by the old employer.

3. An agreement contemplated in subsection (2) must be concluded with the appropriate person or body referred to in section 189(1).

4. A transfer referred to in subsection (1) does not interrupt the employee's continuity of employment. That employment continues with the new employer as if with the old employer.

5. The provisions of this section do not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of, and sentenced for, any offense.