What is an automatically unfair dismissal?
Automatically unfair dismissals are covered by section 187 of the Labour Relations Act 66 of 1995 (LRA).
An automatically unfair dismissal is distinguished from an ‘ordinary’ dismissal i.e. 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.
When it comes to automatically unfair dismissals, it is 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. An infringement of that fundamental right is an automatically unfair dismissal. So too, the right to strike is a fundamental right; accordingly, a dismissal for participation in a protected strike will be automatically unfair.
An automatically unfair dismissal must be referred to the Labour Court for adjudication and may lead to 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 consent to arbitration by the CCMA.
Dismissing an employee for any of the following reasons could be an automatically unfair dismissal:
- Taking action or indicating an intention to take action against an employee for exercising or wanting to exercise any right or for participating in any legal activity;
- Being pregnant or for planning to become pregnant or any other reason related to her pregnancy;
- Belonging to or participating in the activities of a trade union;
- Participating in or supporting a protected strike or for wanting to do so;
- Refusing or indicating an intention to refuse, to do the work of another employee taking part in a protected strike, or who is legally locked out, unless the work is necessary to prevent an actual danger to life, personal safety or health;
- Refusing to accept an employer’s demand related to a matter of mutual interest e.g. refusing to accept a reduced wage demand from an employer during a strike and being dismissed for such refusal;
- Any reason based on direct or indirect discrimination on any arbitrary ground, including (but not limited to) race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, faith, political opinion, culture, language, marital status or family responsibility;
- In contravention of the Protected Disclosures Act, 2000 because the employee made a protected disclosure as defined in that Act.