Very soon Tharollo Consultancy will host a labour case law seminar. As it can be imagined, most of the cases that go for determination in the labour courts and tribunal concern dismissal in workplaces.
As we move towards the seminar we wish to provide our readers with insight issues that concern dismissal to gain understanding of the basic concepts. This will enable them to understand the various approaches taken by the Courts on the issues.
Any employment relationship is normally ended through resignation by the employee, retirement, automatic ending due to lapse of time or dismissal.
What is dismissal? It is first and foremost prudent to mention that at common law, a dismissal is simply repudiation by the employer of contract of employment of its obligations under the contract.
Where the termination of a contract is not consensual, the employee party has a choice of either accepting the repudiation and suing for contractual damages, or holding the employer to contract and suing for specific performance. Whether a dismissal in this sense occurs is established according to the normal principles of contract.
Dismissed employees may sue for breach of contract only if by terminating the contract the employer has breached an express, implied or tacit term of contract – See SA Maritime Safety Authority v McKenzie (2010) 5 BLLR 488 (SCA).
If the repudiation is lawful, the employee has no remedy. At common law not all non-consensual termination will be repudiation. As a result of statutory intervention however, dismissal now encompasses much more as shall be seen hereunder and employees have to a large extent been given much more protection from being dismissed by employers without valid reason.
An Employee may not be dismissed without a reason recognised by the law. An Employer may not dismiss an Employee by simply giving notice as what the case under common law – Ekkerhart Oosterhuis v. Bishop Phillip Mokuku LC/2/94 (unreported).
In terms of Section 68 of the Labour Code Order No. 24 of 1992 (hereinafter referred to as the code) dismissal is termination of the employment contract between an employer and an employee by the employer or at the employer’s initiative.
Dismissal may also be resignation by an employee in circumstances where the employer had made continued employment intolerable for the employee. Dismissal may also be failure by the employer to renew an employment contract in circumstances where the employee had legitimate expectation that the contract of employment would be renewed. The common denominator of the various forms of dismissal is therefore that all of them are ultimately caused by the employer. In essence some overt act by the employer is required to bring the contract of employment to an end.
Through statutory intervention, as stipulated above, no employee may therefore not be dismissed whether adequate notice is given or not unless there is a valid reason for dismissal which reason may be connected with misconduct by the employee, capacity of the employee to do the work that she or he is employed to do or indeed as a result of the operational requirements of the employer.
The foregoing is provided for under Section 66 of the Code. The said section continues to provide that any other dismissal will be unfair unless the employer can prove that he or she acted reasonably in treating the reason for dismissal as a fair one.
It must be mentioned that generally speaking misconduct cases may be based on what is codified in the employer’s disciplinary code as misconduct or may be based on the common law or even practices that may have evolved into rules in the particular industry. In other words, there are those misconducts that need not be codified; for example, that employees may not steal from the employer.
Other types of misconducts need codification or need to be pronounced as such to employees because unless that is done employees may not be aware that it is misconduct for them to act in the particular manner for example (no employees may smoke in the restrooms).
Incapacity dismissals are dismissals based on the capacity of employees to do work. They may take the following forms: Incapacity poor performance, Incapacity ill health or indeed incapacity incompatibility. Dismissals for operational requirements are those that are based on the operational requirements of the employer.
They may amongst others be occasioned by re-organisation of the business or restructuring that may lead to redundancy in positions – See Labour Code Codes of Good Practice 2003.
All the said various types of dismissals and remedies applicable to employees and employers shall be discussed in more detail in our future inserts.
