New case deals with the ‘right not to be dismissed’ in South Africa

Many South Africans are familiar with terms such as  “unfair dismissal” or “unfair labour practice”, but South African labour laws are often more sophisticated than these limited themes and claims can often be multi-faceted, says Bradley Workman-Davies, director at Werksmans Attorneys.

Workman-Davies said that the country’s courts are slowly growing accustomed to recognising and allowing employees to benefit from a variety of rights and entitlements – even when these are sometimes from the same set of events but which deal with different legal principles and have different legal outcomes.

This was one of the main points in a recent Labour Appeal Court (LAC) case which focused on an employee who had been dismissed by Pinelands High School.

The LAC said the employee was entitled to approach the Labour Courts with a claim that he had been unlawfully terminated by his employer, and that this claim was not the same as a claim for unfair dismissal, which had been heard and rejected by the CCMA.

“The difference between these two claims is that firstly, a claim for unfair dismissal arises from the protection afforded to an employee in terms of the Labour Relations Act not to be unfairly dismissed, and which requires the employer to show that it had a fair reason to dismiss the employee, and that it followed a fair procedure in doing so,” Workman-Davies said.

“The CCMA has primary jurisdiction to hear claims about the fairness of a dismissal. The right not be unfairly dismissed may be thought of as a statutory claim, as it arises from statute (the Labour Relations Act).”

“On the other hand, recognising that a contract of employment is, at its most basic element, still just a contract between parties, it may be that if the terms of the contract do not allow for termination of employment, or only allow termination subject to certain conditions having been satisfied, then the employer in terminating the employment relationship may be in breach of contract. This would be an unlawful termination.”

In summary, the right not be unfairly dismissed is a statutory entitlement and the right not to be unlawfully terminated is a contractual issue, said Workman-Davies.

Keeping with the separation between these two concepts, the Labour Appeal Court found although the employee had referred a dispute to the CCMA for unfair dismissal, and the CCMA had dismissed this claim, he was still able to approach the Labour Courts to challenge the unlawfulness of his termination, said Workman-Davies.

“Both employers and employees should be aware that the employment relationship is a multifaceted arena, within which a number of parallel and complementary rights exist.

“Making sure that both parties treat each other fairly (in terms of the relevant statutory requirements) and lawfully (in terms of the specific agreement between them) requires careful consideration,” he said.

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New case deals with the ‘right not to be dismissed’ in South Africa