This question is dealt with in section 186 of the Labour Relations Act (LRA). It can happen that there is a dispute about whether a dismissal has taken place or not. Dismissal takes place when an employer terminates the employment of an employee, either with or without notice. There is no dismissal where an employee voluntarily resigns or an arbitrator isn’t able to intervene in the matter. Resignation is a unilateral decision not requiring the acceptance of the employer.
Where an employee terminates the employment but this termination was prompted or caused by the conduct of the employer. The fact that the employee terminated his employment as a result of the employer’s actions means that the termination was at the initiative or behest of the employer. In terms of section 192 of the LRA, the onus lays with the employee to show on a balance of probabilities that there was a constructive dismissal and not a resignation. If the employer made the continued employment intolerable then the dismissal is unfair. The test for whether the dismissal is unfair is an individual investigation.
Failure to renew a fixed term contract
Under certain circumstances this can also constitute dismissal. A number of employers have used this to dismiss an employee and avoid taking on permanent employees. The temporary nature of the work relationship usually comes to an end because the period for which the parties agreed the contract would endure has expired or because the reason requiring such employee’s services no longer exists. There is therefore no contractual right to, or any expectation of, continued employment. All employment relationships, temporary or permanent, must be terminated fairly. The dismissal of a temporary employee prior to the end of a fixed-term contract, or even of a limited duration contract which contemplates early termination on notice, must still be both substantively and procedurally fair.
The LRA states that non-renewal of a fixed term contract is a dismissal in those instances where the employee “reasonably expected” the employer to renew the contract on the same or similar terms and it failed to do so. The motive for a temporary employment relationship should therefore be bona fide and care should be taken by the employer that no expectations are created with the employee that the temporary employment relationship will be renewed if this is not going to be the case.
In SACTWU & another v Cadema Industries (Pty) Ltd the Labour Court held that the notion of a reasonable expectation is based on fairness, and the existence of such an expectation depends on a number of times without discussion, but where its intervening operational requirements might prevent the employer from renewing it again, an employee who had gained a reasonable expectation that the contract would be further renewed. The employee is thus entitled to a fair dismissal procedure and, in addition, the employer is required to prove a fair reason for dismissal based on those operational requirements.
Where the employment is terminated before it begins?
In Wyeth SA (Pty) Ltd v Manqele & others it was held that when an employer who offers employment to a prospective employee, who accepts such offer, but the employer then ‘withdraws” the offer before employment has actually commenced, a dismissal has occurred. This is based on section 186(1) (a) that states that dismissal means that an employer has terminated a contract of employment with or without notice. The offer and acceptance means that a contract of employment has come into being.
Other types of dismissal
- Employer’s refusal to allow an employee to resume work after maternity leave
- In the case of selective re-employment, employer who has dismissed a number of employees for same or similar reasons only re-employs some of them; and
- Termination of a contract of employment by employee with or without notice because the new employer provided such employee with employment conditions which were substantially less favourable than those provided by the old employer following a transfer in terms of section 197 or 197. This provision deals with termination at the behest of the employee.
This constitutes a repudiation of the employment contract by the employee, and even though the employer might fairly accept such repudiation. If an employee eventually tenders his services, he is entitled to a hearing. The correct approach is to invite the employee, by reasonable notice to his last known address, to attend a disciplinary hearing to face charges of desertion, and to hold the enquiry even in the employee’s absence, and dismiss him if the evidence establishes desertion. If the employee later turns up with an excuse, the validity of that excuse can be tested at an appeal hearing. The person dealing with the appeal should be different from the person who dismissed the employee initially.