What is an automatically unfair dismissal?

Automatically unfair dismissals are covered by section 187 of the Labour Relations Act 66 of 1995 as amended (“LRA”).

An automatically unfair dismissal is different from an “ordinary” dismissal, in other words a dismissal for reasons relating to the employee’s conduct, capacity or the employer’s operational requirements. The essence of the unfairness in these situations comes from the reason for the dismissal. The reasons are regarded by the law as being so serious that such dismissals are automatically unfair.

Automatically unfair dismissals are often related to the infringement of a fundamental right. Freedom of association, for instance, is a fundamental right enshrined in section 23 of the Constitution of the Republic of South Africa, 1996. Where the reason for the dismissal relates to an infringement of that fundamental right, it is an automatically unfair dismissal. So too, the right to strike is a fundamental right; accordingly, a dismissal for participation in a protected strike (a strike which complies with the LRA) will be automatically unfair.

If a dispute relating to an automatically unfair dismissal remains unresolved after conciliation by the CCMA or bargaining council, the dismissed employee may refer the dispute to the Labour Court for adjudication. If the dismissal is found to be unfair the Labour Court may award the employee compensation of up to 24 months’ remuneration. The CCMA does not have the power to arbitrate disputes involving alleged automatically unfair dismissals unless the employee and employer agree, in writing, to arbitration by the CCMA.

Dismissing an employee for any of the following reasons could be an automatically unfair dismissal:

• exercising a right granted under the LRA;
• participating in any proceedings in terms of the LRA;
• participating in, supporting, or expressing an intention to participate in or support a protected strike or any protest action that complies with the LRA;
• refusing or indicating an intention to refuse to perform any work normally done by an employee participating in a protected strike or who was locked out, unless such work is essential to prevent immediate risk to life, personal safety, or health;
• refusing to accept the employer’s demand relating to any matter of mutual interest, for example dismissing an employee for refusing to accept the employer’s demand to reduce pay;
• pregnancy, planned pregnancy or any other reason related to pregnancy;
• belonging to or participating in the lawful activities of a trade union;
• direct or indirect discrimination on grounds, including (but not limited to) race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, political opinion, culture, language, marital status, family responsibility, or on any arbitrary ground;
• a transfer, or reasons related to a transfer where a business is transferred from the old employer to a new employer as a going concern or under circumstances outlined in section 197A of the LRA which relates to insolvency;
• making a protected disclosure as defined in the Protected Disclosures Act, 2000.

It is not unfair to terminate the services of an employee if the employee has reached the normal or agreed retirement age. If the employee challenges the dismissal the employer will need to prove that the age is the normal or agreed retirement age.