Study Unit 5.

1
Meaning of dismissal
1. Statutory definition
2. Fair reasons and procedures
3. Dismissal with or without notice
4. Non-renewal of fixed term contracts
5. Pregnancy
6. Selective re-employment
7. Constructive dismissal
8. S197 dismissal

Statutory definition
➢ Before and employee can claim relief for unfair dismissal = must prove existence of it
➢ If existence is uncertain = S192(1) of LRA states that employee has onus to prove it
➢ If established = S192(2) places the onus on the employer to prove the fairness
➢ Mere fact that there is dismissal – not mean that it was unfair
➢ As rule = dismissal means the termination of employment by employer
➢ S186(1) of LRA = defines 6 forms of dismissal

Fair reasons and procedures

✓ S188 provides for fair reasons of dismissal:
1. Misconduct
2. Incapacity
3. Operational requirements
✓ If dismissal not on these grounds = unjustifiable
✓ RULE = dismissal must be conducted fairly
✓ LRA and Code of Good Practise provides guidelines to ensure fair procedures
✓ Dismissals for a fair reason – still unfair if the procedure is unfair

Dismissal with or without notice

❖ Employer will terminate employment without notice if employee commits material or serious
breach of contract
❖ Termination on notice = period of notice must be equal to minimum periods prescribed in
BCEA
Termination by the employee (resignation)
❖ Termination not a dismissal i.t.o S186(1)(a)
❖ Intention of parties will be of importance
❖ Notice of termination by employee = unilateral act
❖ Not necessary for employer to accept resignation tendered by employee
❖ Nor is the employer entitled to refuse to accept a resignation
❖ CEPPWAWU v Glass = court had to determine intention of parties when deciding if there
was resignation
❖ Employee returned to work the day after resignation – and the refusal of the employer to
accept retraction of it = seen as a dismissal

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 ❖ Ouwerhoud = onus is on employee to prove there had been a dismissal i.t.o S192(1)
❖ Court reasoned = voluntary resignation by agreement is not a dismissal
❖ Contract of employment can be terminated with a notice not less than 4 weeks if employee
was employed for a year or more
❖ No agreement can require an employee to give longer notice
❖ Employee only entitled to resign with immediate effect if there is a material breach of
contract by the employer
❖ Mtati v KPMG – if resignation is with immediate effect = employer loses right to discipline
the employee
❖ If an employee wrongfully purports to resign on no notice = employer is entitled to exercise
its contractual rights during the notice period
Termination before commencement of employment
❖ Once parties reach agreement on all the essential terms of the employment contract = the
contract will be binding and enforceable
❖ Wyeth v Manqele = employer and employee concluded written contract which provided
that employee will commence work
❖ BUT – before employee commenced work = employer informed him that it was no longer
prepared to employ him
❖ Employee claimed unfair dismissal
❖ Court held = agreement is binding on both parties = dismissal was unfair
Desertion or abscondment by employee
❖ Employee regarded as deserted when they fail to report for duty with the intention of never
returning to work
❖ Desertion occurs if an employee has indicated that they do not intend to return
❖ Indication can be express or implied
❖ Abscondment = employee absent from work for such a period that it can be inferred that the
employee has no intention to return
❖ SABC v CCMA = desertion itself not necessarily bring the contract to an end
❖ Only when employer accepted employee’s repudiation = dismissal
Termination by operation of law
❖ Called automatic termination
❖ Employees absent without permission for more than 1 calendar month = deemed to be
dismissed for misconduct
❖ Employees terminated in this manner = not claim dismissal i.t.o S186(1)
❖ If employee has been discharged in this manner later reports for duty = executive authority
has discretion to approve reinstatement of employment
Contractual automatic terminations
❖ Employers sought to avoid liability for unfair dismissals by providing in their contracts that
employment will terminate automatically if a certain event takes place
❖ SA Post Office v Mampuele = court had to determine if the CEO of the SA Post Office has
been dismissed
❖ The CEO was required to be a member of the Post Office’s board – if CEO ceased to be a
member = contract terminated automatically
❖ Post Office argued there was no dismissal due to this clause in the contract
❖ Court found = action to remove the CEO constituted a dismissal

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Non-renewal of fixed-term contracts
▪ At common law – fixed term contract expires automatically when the agreed period comes
to an end
▪ Since it expires automatically = no dismissal can be claimed for an unfair dismissal
▪ S186(1)(b) and S198B deals with fixed term contracts
▪ Employees earning below threshold = rely on S198B
▪ If earn above threshold = rely on S186(1)(b)
S186(1)(b)(i) – reasonable expectation to renew
▪ If employee has reasonable expectation that the employer will renew the contract – and
employer fails = constitutes dismissal
▪ Employee bears the onus
▪ Test to determine reasonableness = objective test
▪ Employer must have created an impression that this expectation was justified
▪ Ways in which the expectation is created:
o Past renewals of contracts
o Making of representation to employee
o Assure the employee that it will be renewed
▪ There must be some form of a prior promise or a past practise
▪ Employers often include a clause in a fixed term contract stating that the employee should
have no expectation of renewal
▪ BUT – such clauses lose its credibility upon each renewal
▪ SA Rugby Associations v SA Rugby – fact that such clause is included required an
employee to place more credible facts before the court to show the reasonableness of the
expectation
▪ Mere expectation = not sufficient
▪ There are cases where employee has an expectation to be employed on a permanent
basis based on a series of renewals
▪ S186(1)(b)(ii) = an offer by employer to retain an employee i.t.o fixed term contract on less
favourable terms = can constitute dismissal if the employee has a reasonable expectation
to be offered an indefinite contract

Pregnancy
» S186(1)(c) of LRA and S25 of BCEA = provides security of employment for female
employee’s during maternity leave
» Employer not permitting such employee to return after maternity leave = dismissal
» S187(1)(e) a dismissal for a reason related to pregnancy will be an automatic unfair
dismissal

Selective re-employment
▬ S186(1)(d) = employer who dismissed a number of employees for the same reason and
offered re-employment to some of them
▬ Elements of this dismissal:
o Previous dismissal of more than one employee

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 o Such employees must have been dismissed for the same reason
o And offer or re-employment was made to some of them
o There was a refusal to re-employ the other employees
▬ Q if there was dismissal within the scope of S186(1)(d) and the Q if such dismissal is unfair
= 2 separate inquiries
▬ Once employer decides to re-employ only some of the employees = he can demonstrate
legitimate and fair basis for this
▬ If employer is unable to do so = dismissals are unfair
▬ Must differentiate between a dismissal i.t.o S186(1)(d) and an unfair labour practice i.t.o
S186(2)(c)
▬ For employer’s conduct to fall within scope of unfair labour practice = mere breach of
agreement to re-employ is sufficient

Constructive dismissal
 Employee terminates employment
 Termination not entirely voluntary = cause by actions of the employer
 Making continued employment intolerable
 In Solid doors = three requirements:
1. Employee must terminate employment
2. Reason for termination must have been that employment became intolerable
3. Conduct of employer must make it intolerable
 If one of the requirements are not present = no constructive dismissal
 Levels or irritation, frustration and tension = will suffice
 Test for intolerability = objective
 Employee’s termination must be the last resort after all other reasonable alternatives has
been exhausted
 Example = employee first lodged grievances to remedy the situation
 To succeed with the claim = the employee must resign within a reasonable time (last straw)
 Ramashowana = fact that employee continued to work for 15 months after alleged
oppressive conduct = showed that it was not unbearable

S197 dismissal – Transfer of employment contracts

 At common law – employer not obliged to take over employment contracts of old employer
 Led to the enactment of S197 and S197A
 It provides for the tight of employees to have their employment contracts transferred by
operation of law
 Aim:
o Facilitate transfers
o Promote employment security
 Requirements to be met before an employee prove that a dismissal took place:
1. Transaction has to be on that falls within the ambit of S197
2. Conditions provided by the new employer after transfer must be less favourable in
comparison to those of the old employer
3. Employee’s resignation must be due to the changed circumstances
 If one of these are not met = employee cannot prove the existence of a dismissal
 Onus rests on the employee

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