During this time of economic uncertainty, businesses are leaning heavily on their workforce to ‘ride the storm’ and emerge stronger.
This is a highly pressurised situation and not all parties play fair, which is why terms like substantially fair, procedurally unfair and automatically unfair have emerged and where the law, thankfully, offers much needed clarity.
From an HR and labour force perspective the Labour Relations Act (LRA) clearly outlines specific conditions when dismissal of employees is automatically unfair.
When talking about unfair dismissals it can be categorised between procedurally and substantively unfair, procedurally fair means that all relevant and required procedures were followed throughout, from initiation to sanction irrespective of the merits of the case, a case can be substantively fair and still be procedurally unfair.
Substantively fair means that a case was decided on its merits and according to a fair reason without any underhanded sanctions being made.
Essentially dismissal based on one or more of the following circumstances constitute automatically unfair action.
• Participation in or supporting, or indicating an intention to participate or support a lawful strike or protest action;
• Refusal to do work normally done by an employee on a lawful strike;
• Refusing to accept a demand in respect of a matter of mutual interest between them and their employer;
• An employee exercised a right conferred by the LRA or participated in any proceedings in terms of the LRA;
• For reasons related to an employee’s pregnancy;
• As a result of unfair discrimination;
• Related to a transfer, or a reason related to a transfer as contemplated in section 197 or 197A of the LRA; and
• In contravention of the Protected Disclosures Act of 2000, by the employer, because of the employee having made a protected disclosure.
The LRA states that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct or capacity or based on the employer’s operational requirements.
Should it be found that an automatically unfair dismissal occurred, the CCMA may award the employee a maximum amount not exceeding twenty-four months remuneration. In contrast, should it be found that just an unfair dismissal occurred the CCMA may award the employee a maximum amount not exceeding twelve months remuneration.
Employers and employees are advised on the impact of cases of automatically unfair dismissal, for example – an employee has only 30 days from the date on which the dispute arose to open a case.
If the case is an unfair labour practice, an employee has only 90 days and, with discrimination cases, an employee has six months. It is not necessary for the employee to inform the employer, the CCMA must give parties at least 14 days’ notice in writing.
In conclusion, there is no doubt any case of automatically unfair dismissal can have far reaching consequences, but the law, in theory, has been designed to protect the interests of all parties.
Nicol Myburgh is the Head of Human Resources at CRS Technologies.