An overview of how the employment relationship can come to an end (Part 2)
An employment relationship can end through dismissal in terms of the Labour Relations Act 66 of 1995 (LRA)
What are the different forms of dismissal in terms of the Labour Relations Act?
The concept of ‘dismissal’ in terms of the LRA is not the same as the lawful cancellation of a contract of employment in terms of the common law. It has a wide definition of ‘dismissal’ which encompasses much more and attempts to address any shortcomings in terms of the common law.
Dismissal can take on a number of different forms in terms of the LRA:
- Section 186: The meaning of dismissal
Section 186(1) (a) to (f) provides the meaning of dismissal by describing six types of circumstances which may be defined as a “dismissal”.
The usual form of a dismissal is where the employer gives the employee notice of termination. The other forms of dismissal each deal with a specific problem that arises from the nature and effect of the employment contract itself, for example:
- Section 186(1) (b) deals with the renewal of a fixed-term contract;
- Section 186(1) (e) deals with what is known as a “constructive” dismissal.
- Section 187: Automatically unfair dismissals
Automatically unfair dismissals are covered by Section 187 of the LRA. Automatically unfair dismissals are often related to the infringement of a fundamental right enshrined in section 23 of the Constitution. For example, automatically unfair dismissals take place when the reason for the dismissal is where the employee was exercising a lawful right to strike, or was dismissed for whistle blowing, or being pregnant, or on a ground of unfair discrimination. An automatically unfair dismissal may be conciliated by the CCMA or a bargaining council with jurisdiction. If the dispute is not resolved at the conciliation hearing, the matter may be referred to the Labour Court for adjudication. The maximum compensation payable to an employee for such a dispute is 24 months’ remuneration.
- Section 188: Other unfair dismissals
Section 188 recognises three grounds on which a termination of employment may be unfair if the employer fails to prove the fairness of the dismissal related to:
- The conduct or behaviour of an employee;
- The capacity of an employee to undertake the work due to ill health, injury or poor performance; and
- The operational requirements of the employer due to economic, structural or technical reasons (retrenchment).
If an employee is dismissed without a valid reason and not according to a fair procedure, then the dismissal will be unfair.
The following Codes of Good Practice need to be taken into account when dealing with various forms of dismissal in terms of section 188 of the LRA:
- The Code of Good Practice: Dismissal
- The Code of Good Practice on dismissal based on operational requirements
- The Code of Good Practice: Employment of people with disabilities
- Section 67 (5): Dismissal where employees go on a protected strike
An employer may not dismiss an employee for participating in a protected strike. A protected strike is one that complies with the requirements of the Labour Relations Act. However, in terms of section 67 (5) of the Labour Relations Act, an employer can dismiss an employee who is participating in a protected strike for reasons based on the employees conduct or for reasons based on the employer’s operational requirements. Such a dismissal will be fair provided it is for a fair reason and in accordance with a fair procedure.
- Section 68 (5): Dismissal where employees go on an unprotected strike
In terms of section 68(5) participating in an unprotected strike, in other words a strike that does not comply with the law, may be a fair reason for dismissing an employee. In determining whether or not such a dismissal is fair, the guidelines in the applicable Codes of Good Practice must be taken into account.
- 6. Section 198A: Dismissal related to a Temporary Employment Services (TES)
This type of dismissal is specific to situations where an employee of a Temporary Service (TES) Provider is placed with a client company. An employee of the TES can refer an unfair dismissal dispute against the client or the TES if his/her services with a client are terminated in order to avoid being deemed to be an employee of the client, or because the employee exercised a right in terms of the LRA. In this instance the nature of the dismissal is linked to specific provisions in section 198A and not to grounds relating to conduct, capacity and operational requirements.
- Dismissal of an employee who is on probation
In terms of item 8 of the Code of Good Practice: Dismissal, the reason for dismissing an employee who is on probation for poor performance can “be less compelling than would be the case in dismissals effected after the completion of the probationary period”. In such a case, a fair procedure must still be followed. Should it become necessary to dismiss a probationary employee for a reason other than poor performance (for example conduct, capacity or operational requirements), it must be for a fair reason and in accordance with a fair procedure.