It is important for employers to familiarize themselves with the type of dismissals that are provided for in the LRA so that they can avoid litigation issues. With these different types of dismissals there are specific fairness requirements which are associated with each one of them.
In this post, I will provide the 6 types of dismissals that are covered in the LRA, which are provided for in Section 186 of the LRA. For the purposes of this post, I will not be covering automatically unfair dismissals, which are covered in Section 187 of the LRA.
Section 186 of the LRA: The 6 types of dismissals
An employer terminates a contract of employment with or without notice
This is the most common type of dismissal. To be the fair, the dismissal must refer to the employee’s conduct, capacity or the employer’s operational requirements (retrenchment). These dismissals are preceded by a disciplinary hearing, a performance enquiry or retrenchment consultation. Dismissals where the employee is not at fault are usually on notice and dismissals where the employee is at fault are usually without notice.
Employee reasonably expected a Fixed Term contract to be renewed and it wasn’t
A fixed-term contract is defined as a contract of employment for a fixed period, linked to a time period, or a completion of a particular project. A fixed-term contract expires automatically when the time period comes to an end or when the specific project is completed, and this does not constitute a dismissal.
A dismissal may arise where the employer fails to renew a fixed-term contract or offers to renew the contract on less favorable terms contrary to the employee’s expectations. For it to be a dismissal, the employee will need to show that he or she had a reasonable expectation of a renewal of the contract on the same or similar terms. A dismissal may further arise where the fixed-term employee had a reasonable expectation of permanent employment and the employer failed to retain the employee or offered to retain the employee on less favorable terms.
Not allowing an employee to resume work after maternity leave
This type of dismissal must not be confused with an automatically unfair dismissal, where the reason for the dismissal is directly related to the employee’s pregnancy or planned pregnancy. Here it a refusal to allow the employee to resume work after an absence, which absence was statutory or contractual maternity leave.
Employee not being re-employed after others who were dismissed for the same reason as him/her have been re-employed
An example of this type of dismissal is where an employer retrenches a group of employees including “troublemakers” and then re-employs those who are not seen as “troublemakers”. This is unfair dismissal as it amounts to selective re-hiring of employees.
Employee resigned because the employer made continued employment intolerable
This is referred to as constructive dismissal. The employer does not actually dismiss the employee, but makes the working conditions so intolerable, that the employee is forced to resign. It is important to note, that for this type of dismissal, the onus of proof is on the employee who alleges that the employer’s actions caused him or her to resign.
Employee terminated employment contract after a transfer provided less favorable conditions of employment
This relates to where a business is transferred as a going concern (Section 197 of the LRA) or in circumstances of insolvency (Section 197a), the new employer is obliged to offer conditions of employment that are substantially not less favorable to the employee. Under this type of dismissal, the employee would resign because of the working conditions being substantially less favorable that those of the previous employer.
To ensure that the dismissal was fair, as an employer, you need to have a checklist in place where you check things such as the reason for the termination of employment, the procedure that was followed leading up to the dismissal and the communication of the termination of employment.
The are several ways to ensure that you are properly equipped to handle dismissals in your business, one of them would be to attend one of our IR related trainings which deal extensively with making sure that your dismissals are legally compliant. Another way to ensure that you are properly equipped is to book a consultation with us whenever you are in doubt.
Sources: Preparation for and representation at CCMA Arbitration Hearing. A resource manual for worker and employer representatives. November 2018