Right not to be unfairly dismissed or subjected to unfair labour practice. Every employee has the right not to be unfairly dismissed; and subjected to unfair labour practice.
186. Meaning of dismissal and unfair labour practice
(1) “Dismissal” means that-
(a) an employer has terminated a contract of employment with or without notice;
(b) 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;
(c) an employer refused to allow an employee to resume work after she-
(i) took maternity leave in terms of any law, collective agreement or her contract of employment; or
(ii) 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;
(d) 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
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
(f) an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving – unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(3) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
187. Automatically unfair dismissals
(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is-
(a) 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;50
(b) 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;
(c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
(d) that the employee took action, or indicated an intention to take action, against the employer by-
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
(iii) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;
(iv) 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;
(v) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or
(vi) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.
(2) Despite subsection (1)(f)-
(a) a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;
(b) 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-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was affected 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 affected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.51
(3) Disputes about unfair dismissals and unfair labour practices52
(a) If there is a dispute about the fairness of a dismissal or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing within to-
(i) a council, if the parties to the dispute fall within the registered scope of that council; or
(ii) the Commission, if no council has jurisdiction.
(b) A referral in terms of paragraph (a) must be made within –
(i) 30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal;
(ii) 90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence.
(1) If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the relevant time limit in subsection (1) has expired.
(2) (2A) Subject to subsections (1) and (2), an employee whose contract of employment is terminated by notice, may refer the dispute to the council or the Commission once the employee has received that notice.
(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-
(a) the council or the Commission must arbitrate the dispute at the request of the employee if-
(i) the employee has alleged that the reason for dismissal related to the employee’s conduct or capacity, unless paragraph (b)(iii) applies;
(ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187;
(iii) the employee does not know the reason for dismissal; or
(iv) the dispute concerns an unfair labour practice; or
(b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is-
(i) automatically unfair;
(ii) based on the employer’s operational requirements;
(iii) the employee’s participation in a strike that does not comply with the provisions of Chapter IV; or
(iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.
(5A) Despite any other provision in the Act, the council or Commission must commence the arbitration immediately after certifying that the dispute remains unresolved if the dispute concerns-
(i) the dismissal of an employee for any reason relating to probation;
(ii) any unfair labour practice relating to probation;
(iii) any other dispute contemplated in subsection (5)(a) in respect of which no party has objected to the matter being dealt with in terms of this subsection.
(6) Despite subsection (5)(a) or (5A), 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-
(a) the reason for dismissal;
(b) whether there are questions of law raised by the dispute;
(c) the complexity of the dispute;
(d) whether there are conflicting arbitration awards that need to be resolved;
(e) 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-
(a) to the Commission for arbitration; or
(b) 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) (a) 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.
(b) However, the Labour Court may condone non-observance of that timeframe on good cause shown.
(12) If an employee is dismissed by reason of the employer’s operational requirements following a consultation procedure in terms of section 189 that applied to that employee only, the employee may elect to refer the dispute either to arbitration or to the Labour Court.
(13) (a) An employee may refer a dispute concerning an alleged unfair labour practice to the Labour Court for adjudication if the employee has alleged that the employee has been subjected to an occupational detriment by the employer in contravention of section 3 of the Protected Disclosures Act, 2000, for having made a protected disclosure defined in that Act.
(b)A referral in terms of paragraph (a) is deemed to be made in terms of subsection (5)(b).
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 and unfair labour practice
(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-
(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;
(b) 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
(c) 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-
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) 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.53
(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.