The LRA 66 of 1995

Purpose & application of the Act

• To bring law in line with the Constitution – give effect to sec 23 of the
Constitution - sec 1 of the LRA
• To bring law in line with international law – sec 1 of the LRA
• To advance economic development, social justice labour peace and
democratisation of the workplace – sec 1 of the LRA
• It applies to all employees except members of the NIA, SASS and
SANDF – sec 2 of the LRA
Disciplinary rules and standards
• The purpose of discipline is to ensure that individual employees contribute
effectively and efficiently to the goals of the common enterprise
• Production would be affected if employees were free to stay away from
work when it pleases them, to fight with their fellow employees, or disobey
their employer’s instructions
• So there is a duty on employers to ensure that employees adhere to
reasonable standards of efficiency and good conduct
• During the era of Master & servant laws criminal sanctions were used to
compel employees to perfume as prescribed in the contract of
employment – breach of contract would be punished by fines,
imprisonment and even by corporal punishment
• In modern employment, disciplinary sanctions can either be
corrective or progressive rather than punitive
• Corrective or progressive discipline – a means for employees to know
and understand what standards are required of them in the
workplace
• The law requires employers to try to correct employees’ behaviour by
a system of graduated disciplinary measures such as counselling and
warnings rather than dismissals
• Employers are permitted to come up with rules to ensure efficiency
and order in the workplace but such rules must be applied fairly
• Rules regulating conduct in the workplace are sourced from common
law eg trust and good faith
• Some rules come from a collective agreement between the employer
and organised labour
• Some rules arise impliedly from the conduct of the parties
• The contract of employment is also one of the sources where one can
establish the rules applicable in the workplace
• Employers & trade unions often negotiate rules that will apply in the
workplace
sanctions
• Disciplinary penalties in the workplace must be applied progressively
– lighter sanction should be applied for a first offence and graver
sanctions reserved for repetitions or the commission of a serious
offence – eg dismissal
Sanction 1 – general warnings
• Issued to inform employees about the rules which the employer has
resolved to apply
• They are communicated as part of an induction programme or issued on an
ad hoc basis to deal with a specific situation
• Employer must reach agreement with trade unions or workplace forums
before implementing these rules
• General warnings are normally used to signal to all employees that the
employer intends to take action against forms of misconduct (eg late
coming, absenteeism) that might have been condoned in the past
• These are not in themselves sanctions but employees are given a warning-
shot that they may not claim unfair treatment or inconstant treatment if
the employer acts on the general warning
• If employees are not warned that the conduct on which they have
embarked upon may lead to dismissal, their dismissal may be ruled
unfair
• General warnings are addressed to the general workforce and as such
are not sanctions
Informal warnings
• Usually oral warnings are given to employees for particular acts of
misconduct
• They are reminders that if employees continue with the prohibited act a
severe action may follow
• Informal warnings represent the first stage of disciplinary action
• The way in which employers issue and record warnings differ from
employer to employer – some record them formally on the employee’s
personal file while others don’t
• It is advisable for the employer to keep a proper record of all warnings
• The purpose of a warning is to advise the employee concerned of defective
standards or behaviour, to remind the employee of the existence of the
rule which have been breached or overlooked
• If employees are not warned after committing an offence they may be
held to have legitimately assumed that the conduct for which they
were ultimately dismissed was not deemed by the employer to be
worthy of disciplinary action – corrective discipline
• Since an oral warning is informal there is no special procedure that
needs to be complied with when issuing it unless otherwise specified
in a collective agreement
Written warnings
• It is more formal than an oral warning
• It serves as proof if that the warning was given if subsequent disciplinary
action against the same employee is necessary
• Employee is usually asked to sign a written warning and some employers
want it to be witnessed
• Warning remain in force for a specific period of 6 months, for example
• The issuing of a written warning should be preceded by a proper inquiry
during which the employees concerned should be allowed to state teir side
of the story and produce witnesses if necessary
• It would be desirable that such employee be represented by a fellow
worker or union representative during disciplinary proceedings
Final written warnings
• This is the final warning an employee can expect before being
dismissed for a repetition of the type of misconduct for which it was
issued
• Final warnings should not be issued lightly or prematurely
• An ill considered final warning may create problems if the employee is
later faced with dismissal for having committed the same offence and
the employee challenges the validity of the earlier warnings
• If an employee is given a number of final warnings other employees
may begin to suspect that no matter how badly they behave they will
never be dismissed
• Employees may be dismissed if they commit offences similar to those
for which they were on final warning at the time
• In SACTWU v Novel Spinners (1999) 11 BLLR 1157 (LC) the court held
that it is unfair to dismiss employees for ‘collective misconduct’ such
as an illegal strike or stay-away on the basis of prior warnings for
individual misconduct
• Prior written warnings may not be taken into account if they are for
offences different from the final offence
Denial of privileges
• The Code of Good Practice: Dismissal states that infringement of
workplace rules may call for a final warning or ‘other action short of
dismissal’
• This opens a possibility of a range of imagined sanctions such as
deprivation of a portion of discretionary bonuses, and other special
privileges which the employer may grant (eg special leave or other
privileges attached to long service)
• However, employers may not impose fines on employees or make any
deductions from their salaries for disciplinary offences without their
consent in writing
Suspension
• It may be imposed as a precautionary measure pending disciplinary
action or as a form of disciplinary penalty
• Precautionary suspension is not in itself a disciplinary penalty
demotion
• Self study
dismissal
• Dismissal is considered the most serious disciplinary penalty that can
be lawfully imposed by an employer
dismissal
• It refers to the termination of employment at the instance of the employer
• It is the employer that brings the contract of employment to an end
• Common law only knows two forms of dismissal, viz: dismissal with or
without notice – because there was a breach of contract or for other
reasons
• The LRA has extended the concept of dismissal to include other forms as
well – see sec 186(1)
• The common law form of dismissal is only reflected/accommoded in sec
186(1)(a)
• The date of dismissal is the earlier of the date the contract was terminated
or the date the employee left the employer’s service
• The LRA define the circumstances in which employees may be dismissed
• It creates forums charged with determining whether dismissals are fair and
by giving employees remedies against unfair dismissals – CCMA & LC
• The first question to be addressed if there is allegation of dismissal is
whether an employee/worker has been dismissed
• This involves the question of whether the person is/was an employee since
only employees proper can be dismissed
• Even if the person is an employee as defined, it does not always follow that
the termination of employment r/ship amount to dismissal – the person
may have resigned, repudiated his or her contract by desertion, or the
contract may have lapsed
Forms of dismissal - section 186(1) of the LRA
• Termination of employment with or without notice – s 186(1)(a)
• Non renewal of a fixed term contracts – s 186(1)(b)
• Termination on the ground of pregnancy or maternity leave – s
186(1)(c)
• Selective re-employment – s 186(1)(d)
• Constructive dismissal - s 186(1)(e)
• Section 197 dismissals – s 186(1)(f)
Dismissal with or without a notice
• There must be an employment r/ship b/twn the dismissed person and
the employer – not an indep contractor
• Summary dismissal -if the employer does not give the employee
notice of termination of employment r/ship
• The gravity of the offence committed will warrant summary dismissal
• If notice is given, employment r/ship terminates at the end of the
notice period
• The labour broker’s client cannot dismiss the broker’s employee – the
employee is in the broker’s payroll – s 198(2) LRA – Nape v INTCS
Corporate Solutions (2010) 31 ILJ 2120;
• A company in provisional liquidation is deemed to have dismissed its
employees – the notice is issued by liquidators
• Employment can be terminated formally – by giving a written notice
or by any conduct that signify termination of employment
• Sometimes employees claim to have been dismissed while the
employer claim he/she resigned – Ouwerhoud v Hout Bay Fishing
(2004) 25 ILJ 731 (LC)
• Amazwi Products v Turnbull (2008) 29 ILJ 2554- the employee
resigned as director but remained 100% as employee - the employer
argued he had resigned- the court held he was unfairly dismissed
• An instruction to an employee to report in another town/ workplace
does not constitute termination unless it creates an intolerable r/ship
• An employee who resigns is not dismissed bcz termination is not
caused by the employer – except constructive dismissal
• An employer’s refusal to accept the employee’s withdrawal of notice
of resignation may constitute dismissal – CEPPWAWU v Glass &
Alluminium (2002) 23 ILJ 695 – where there is change of mind from
the side of an employee
• When employment terminates bcz the employee has reached an
agreed retirement age, it does not constitute dismissal within the
meaning in sec 186(1)(a)
• If there is no agreed retirement age and the employer forces
employees to retire the employer’s conduct constitute dismissal
• The employer must explain what the retirement age is
Failure to renew fixed term contracts
• Common law – fixed term contracts expires automatically at the end
of the term
• In terms of the LRA, a failure to renew a fixed contract may constitute
dismissal if there was a legitimate expectation that it will be renewed
• When establishing whether non renewal constitute dismissal, the
terms of the contract remain important
• The contract itself remains the main indication if the parties wanted
to terminate employment
Reasonable or legitimate expectation
• For a legitimate expectation to exist: there must be a promise or past
practice to which the employee relied to get an impression that the
contract will be renewed – see Gaxa v Chiefs Football Club
• The employee bear the onus of proving that there was an expectation
of renewal – Vorster v Rednave
• SA Rugby Players Association obo Bands & other and SA Rugby
(2005) 26 ILJ 176 CCMA) - there was no reasonable expectation of
renewal
• The employee bears the onus of proving the reasonableness of the
expectation
• In Gubevu Security Group v Ruggiero a 3 months contract was
extended for a further month as notice period
• Contract stated that her salary would increase after 3 months
• It was stated there was reasonable expectation based on contract
• In Van Blenk v TUT the employee’s fixed term contract was renewed
more that 10 times – it was held that there was an expectation after it
was subsequently not renewed
Dismissal due to pregnancy or intended
pregnancy
• There is dismissal if the employer refuses to allow an employee to
resume her duties after taking maternity leave
• The leave must have been taken in terms of any law or collective
agreement – see Sec 25 and 25A, B and C of the BCEA as amended
• Employees are deemed to be automatically dismissed if the employer
refuses them employment after they had taken maternity leave in
terms of the BCEA, collective agreement or contract of employment
• If the employee stays away for longer than the time stipulated in the
legislation, the employer may treat the case as a desertion
Selective re-employment
• For this form of dismissal to take place certain req must be met:
• The employer must have dismissed a number of employees for the
same or similar reason(s)
• This form of dismissal takes place when one of the formerly dismissed
employees have been offered re-employment to the exclusion of
other former employees
• The employer must refuse to re-employ one or more of the previously
dismissed employees
Constructive dismissal
• The employee terminates the contract of employment
• It is the employer’s conduct that forces the employee to resign
• He/she must be an employee at the time he/she leaves the
employer’s service
• The employer must have made work environment intolerable for the
employee
• In Coetzee v Pitani the employee resigned after he was not paid his
salary – it was held the conduct of the employer forced him to resign
• There must be a causal link b/twn the employer’s conduct and
circumstances that forced the employee to resign
• The employer must not only be responsible for those circumstances
but must also be blamed for such circumstances – Murray v Minister
of Defence (2008) 29 ILJ 1369
• The circumstances must occur before the employee tender his or her
resignation
• Ntsabo v Real Security (2003) 24 ILJ 2341 – employee was
constructively dismissed after the employer failed to heed to her plea
to be assisted against a manager who was harassing her
Section 197 dismissal
• Transfer in terms of sec 197 does not constitute dismissal: Krishna v UKZN
(2012) 33 ILJ1688
• If the new employer provides the employee with less favarouble terms
than the old employer – this can amount to dismissal
• Sec 187(1)(g) renders dismissal related to transfers automatically unfair
• If the new employer gives less favourable terms, sec 186(1)(f) gives the
transferred employees the choice of either leaving the service of the new
employer & claim unfair dismissal or compel the new employer to improve
the conditions of work.
• The employee will have to prove that the conditions of are indeed less
favourable to that of the previous/old employer.
Other termination that constitute no
dismissal
• Deemed dismissal: Phenithi v Minster of Ed (2006) 27 ILJ 477 eg a long
period of absence - desertion
• If the parties reached agreed period for termination of employment- fixed
term contract
• The completion of a specific task
• Through repudiation – CSIR v Fijen (1996) 17 ILJ 18 – distinction was made
b/twn repudiation in wide (cancellation) and narrow (clear intention not
wanting to honour your contract)
• Through mutual agreement
• Death of an employee
• By insolvency
• By state action – eg long term imprisonment entitles the employer to
terminate employment-Bosch v THUMB Trading (Pty) ltd (1986) 7 ILJ
341
• By exercise of executive power- eg powers given to the President as
head of the executive – cabinet reshuffle
• Transfer of business – refer to discussion above
• Termination pursuant to collective agreement – NUMSA v Kwikot
[2013] 6 BLLR 580 – dismissal of unprotected strikers
Acceptable reasons for a dismissal – sec 188
of the LRA
• A dismissal is unfair if the employer fails to prove that the reason for
dismissal is related to conduct, capacity or employer’s operational
requirements – sec 188
• If the reason cannot be brought under any of the sec 188 reasons, it is
arbitrary and unjustifiable
• The dismissal may be brought in terms of sec 187 and in such case no
proper reason for dismissal is expected from the employer
• There are other reasons not catered for in the LRA such as dismissal for
incompatibility, and dismissal that is based on some nepotistic objectives
• The court has to decide whether it lists these under sec 187(f) (unfair
discrimination) of the LRA or under sec 188 (misconduct)
• Even if the reason is an acceptable one, the employer must follow a
fair procedure prior to dismissal – eg the employee must be given the
benefit of the audi alteram partem rule
• There are different pre-dismissal procedures for each of the reasons
for dismissal – incapacity, misconduct and operational requirements
• No matter how compelling the reasons for dismissal are, the
employer is bound to follow a fair procedure
NUMSA v Stainless Steel (Pty) ltd 2019 40 ILJ
2598
• The employees were dismissed in August 2013 following an
unprotected strike
• They referred an unfair dismissal to the CCMA & a certificate of non-
resolution was issued
• In Sep 2014, the employees became aware that two employees
dismissed for the same misconduct had been reinstated by the
employer
• NUMSA addressed a letter to the employer wanting an explanation
about this and the employer denied having reinstated the employees
concerned
• They then referred a dispute in terms of s 186(1)(d) of the LRA –– on
the ground that the employer refused to reinstate the individual
applicants - selective re-employment
• They alleged that there the re-instatement of the other employees
was unlawful and unfair
• The employer denied that the two employees were part of the group
that was dismissed instead they had been given a written warning
• The CCMA ruled that it had no jurisdiction to entertain the matter
and it went to the labour court but applicants abandoned it and
wanted to reinstate unfair dismissal
Niland v Ntabeni No & others (2017) 38 ILJ
1686
• Mr N worked as a professional hunter for his employer Mr H since
2003
• He later obtained a 49% share in the cc which controlled the business
of the game farm
• In 2006 Mr N married and in 2009, Mr N’s wife started an affair with
Mr H.
• 2013, Mr H’s wife found out about the affair and left him and the
farm to lodge a divorce action
• Mr N was more tolerant & forgave both Mr H & his wife
• They nonetheless continued with their affair for several more years
• 2015, Mr N & Mr H had an altercation abt the affair, and three
months later in July, Mr N informed Mr H that the time has arrived for
a parting of ways
• Mr N refused to sign a resignation letter
• He then posted on facebook a msg that he had decided to move on to
bigger thinking
• He left the farm but remained the member of the CC
• A few days later Mr N took up employment with another game farm
in the area and immediately began poaching customers of Mr H’s
farm
• Mr N then referred a dispute to the CCMA alleging a constructive
dismissal in terms of sec 186(1)(e) of the LRA
• The CCMA found that he failed to discharge the onus to show that he
had been dismissed
• He had failed to show that the work environment had become
intolerable
• Although Mr N submitted that the altercation in April 2015 was the
“last straw” this was not supported by his conduct as he continued to
work for Mr H for 3 more months
• On a closer inspection it appeared that the real reason for him leaving
was the bigger thing and to work for a neighbouring
• The ff were held to be the elements of constructive dismissal
• (a) The employee terminated the employment r/ship
• (b) when the employee did so the employment r/ship had become so
intolerable that he could not reasonably be expected to put up with it
• (c) the conditions or events of which he complained were the main
cause of his decision to terminate the r/ship
• (d) Mr H’s conduct brought about the situation that made his
continued employment intolerable
• (e) Mr H was to blame for the conditions that drove N to terminate
the r/ship
Automatically unfair dismissal – sec 187 of
the LRA
• Dismissal bcs the employee exercised the right to freedom of
association or took up membership of a workplace forum
• Bcs the employee participated in a protected strike
• Refusal to do replacement work
• Dismissal lock out
• Pregnancy
• Discrimination
Solidarity obo van Tonder v Armaments
Corporation of SA (2019) 40 ILJ 1593
• Appellant was a senior manager for Armscor for 19 years
• He lodged unfair dismissal in terms of s 186(1)(e) alleging that the
employer changed his performance scores and negotiated in bad faith
on his performance requirements
• He further argued that the employer interfered with operations in his
division
• CCMA found that the employee had been constructively dismissed
and ordered Amscor to pay compensation
• On review the LC disagreed and found that the employee had not
been constructively dismissed but resigned
Automatically unfair dismissal
Freedom of ass & workplace forums – sec 5 of
the LRA
• The section protect both employees and applicants for employment
• If the employee was dismissed bcs he wanted to join a trade union-
the dismissal is automatically unfair
• If the employee participate in lawful activities of the union –
automatic unfair dismissal
• In National Union of Public Servants and Allied Workers Union obo
Mani v National Lotteries Board (2014) 35 ILJ 1885 the CC split over
the meaning of “lawful activities”. Employees petitioned the Lotto’s
board of directors wanting the CEO to be dismissed and leaking such
petition to the media.
Dismissal for participation in a protected
strike
• Employees are protected when they participate in a protected strike –
sec 67(2) of the LRA
• A strike is protected if it complies with chapter iv of the LRA
• A strike in terms of this section includes pickets and protest action
• If an employee is dismissed bcz he/she participated in a protected
strike such dismissal would be automatically unfair
• All employees participating in a strike are protected not only
members of the union that called the strikes – see SATAWU v Equity
Aviation Services (2006) 27 ILJ 2411
• If employees commit misconduct during strike, they are not protected
• The employer can also dismiss employees during a protected strike
for reasons related to operational requirements – sec 67(5)
• If dismissal is for operational requirements, the LC must carefully
scrutinise the operational reasons that employers cite to support
retrenching workers
• The true and proximate reasons for dismissal in such cases must be
established – SACWU v Afrox Ltd (1999) 20 ILJ 1718
Refusal to do replacement work
• Employers often want to keep business going and persuade non
striking workers to do work done by employees who are on strike
• A dismissal for refusal to do such work would be automatically unfair
(sec 187(1)(b))
• The LRA doesn’t prevent employers from taking on replacement
labour during a strike – 76(1)
• Such work must be necessary to prevent an actual danger to life,
personal safety or health – maintenance service
Dismissal in support of an employers demand
• In the past employers used a threat of dismissal to compel employees to do
all manner of things
• Employers could lock out employees to compel them to accept their
demands
• A demand by employer that the employee accept in respect of matters of
mutual interest amount to automatic unfair dismissal
• In ECCAWUSA v Shoprite Checkers t/a OK Bazaars Krusgersdorp (2000) 21
ILJ 1347 employees were retrenched after they refused to accept changes
in the shift system as alternative to retrenchment
• The employer’s conduct was justified bcs it part of attempt to avoid
dismissal
• In MWASA v Independent Newspapers (2002) there were changes to
editorial policy to which editors did not agree and were retrenched
such retrenchment was not justified
victimisation
• If employees are dismissed for taking legal action against their
employers eg exercise of rights
• The employer should not use his stronger position and employee’s
fear of losing job to intimidate them
• LC has accepted that dismissing an employee for this reason is
automatically unfair – Mackay v Absa Group (2000) 21 ILJ 2054; De
Klerk v Cape Union Mart International (2012) 33 ILJ 2887
Pregnancy
• Before the enactment of the BCEA in 1997 there were no protection
of pregnant employees
• Section 25 makes provision for maternity leave
• There is also now sections 25A, B and C for paternity leave and other
leave provisions for same sex relationships and surrogacy agreements
• The employer can, however, dismiss fairly on the basis of operational
requirements
• A woman on maternity leave is not immune from dismissal for
preceding misconduct In Ekhamanzi Springs v Memela (2014) 35 ILJ
2388
Discriminatory dismissals
• Sec 187(1)(f) of the LRA and sec 6(1) of the EEA prohibits unfair
discrimination
• Employees claiming dismissal must prove that they were unfairly
discriminated
• Only differentiation that has no economic rational can amount to
unfair discrimination
• Dismissal on one of the grounds listed in sec 187 will be unfair even if
the employer can put forward economic reasons
• In Naude v MEC for Health Mpumalanga (2009) 30 ILJ 910, Naude, a
doctor employed by dept of health supported an action against the
gov to roll out ARVs
• His dismissal was held to be automatically unfair bcz the MEC abused
its powers
Transfer of business
• The reason for dismissal need not be the transfer itself but it must be
for some other reason(s)
• If the reason for dismissal is the transfer, such dismissal is
automatically unfair
• An employee who alleges that the dismissal was due to transfer must
prove the link b/twn the transfer and dismissal
• The main purpose would to establish if the employer’s conduct is not
intended to evade sec 197 provisions
Whistle blowing
• If the employee is dismissed bcz s/he made disclosure in terms of the
Protected Disclosures Act of 2000
• For example if the employer is involved in the commission if criminal
acts, is evading a legal obligation, perpetuates unfair discrimination
• The disclosure is protected if it is made in good faith to a legal advisor
or another employee of the employer concerned
• If the disclosure itself constitute a criminal offence, it is not protected
• A disclosure is also deemed protected if it is legally privilege – eg infor
disclosed during CCMA proceedings – Rhan v Cheil SA (2015) 36 ILJ
2657
Remedies for unfair dismissal – sec 193 of the
LRA
• Re-instatement or re-employment
• Re-instatement suggests that the period of service b/twn dismissal
and resumption of service is deemed unbroken
• Re-employment means that the employment contract ended at the
date of dismissal and resumed on the date of re-employment
• Reinstatement – dismissal is treated as if it never happened
• Reinstatement- the order of reinstatement must not be conditional
• Re employment- contract runs afresh
• For remedy of compensation - courts & arbitrators have discretion of
awarding any amount subject to applicable ceilings
• Compensation- 24 months for automatically unfair dismissal and 12
months for unfair dismissals – sec 194(1)
• In CEPPWAWU v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 – it
was held that the amount of compensation for automatic unfair
dismissal must penalise the employer for dismissing the employee for
a prohibited reason
• Other orders – the court deems appropriate – eg interdict or orders
ancillary to reinstatement, re-employment or compensation – Wall v
Brandadd Marketing (1999) 20 ILJ 1314