What is the meaning of “dismissal”? / by

Dismissal means the termination of the contract of employment by the employer.

a) Forms of dismissal

Dismissal means the termination of the contract of employment by the employer. Section 186 of the LRA makes this clear and goes on to include actions that are not often regarded as dismissal but amount to it. They are —

 

  • the refusal to renew a fixed term contract in certain circumstances

 

  • the refusal to employ an employee when she returns from maternity leave

 

  • the selective re-employment of employees fired for the same reason

 

  • constructive dismissal

 

  • the employee terminates the contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.

 

Termination by the employer

This is the ordinary meaning of dismissal. It is different from other terminations of the contract of employment such as termination by operation of law or termination by the employee, called resignation. It does not matter whether the dismissal is on notice or summary.

Failure to renew a fixed term contract

The failure to renew a fixed term contract is regarded as a dismissal if the employee had a reasonable expectation that the contract would be renewed on the same or similar terms. If the reasonable expectation is in respect of permanent employment and the employer does not offer permanent employment, that failure does not amount to a dismissal under section 186(b) of the Labour Relations Act 66 of 1995. See Dierks v University of South Africa. If the contract is offered on less favourable terms, that will constitute a dismissal.

Failure to employ on return from maternity leave

If an employee returns from maternity leave the employer’s failure to permit her to resume work constitutes a dismissal. This applies even if she returns to work after the maternity leave has expired. But an employer may have a reason other than the employee’s pregnancy for the dismissal in this case. It may be justified either on the ground of absence without leave or operational requirements. In such an event the delay, the reasons given for the delay and the steps taken by the employee to advise the employer of those reasons before the expiry of the leave will all constitute factors in determining the fairness of the dismissal.

Selective re-employment

If an employer fires a number of employees for the same or similar reasons and then offers some of them re-employment, the failure to offer re-employment to the rest is deemed to be a dismissal. This provision is to prevent the stratagem resorted to by a unscrupulous employer to avoid the charge of inconsistency in the dismissal by firing all the employees involved in a fight and then re-hiring only some of them. It does little more than close a legal loophole in respect of the disciplinary principle of consistent treatment.

Constructive dismissal

If an employer makes it intolerable for an employee to continue working and the employee resigns as a result, the law regards the resignation as a dismissal. An example is sexual harassment. If one employee sexually harasses a co-employee and no steps are taken by the employer to prevent the harassment, the employee’s resignation in order to escape the harassment will be treated as a dismissal. The test is however strict: it must be intolerable. It is not just the subjective view of the employee. It is an objective assessment based on what a reasonable employee would regard as intolerable. See Pretoria Society for the Care of the Retarded v Loots.

Transfer dismissal

This is a species of constructive dismissal, but in this case the employee resigns because he or she is worse off than before the transfer. If an employee is transferred from one employer to another in terms of section 197 or 197A, but finds that conditions or circumstances at work are less favourable than those the employee had with the first employer, the employee’s resignation or termination of the contract will constitute a dismissal for the purposes of section 186(1)(f).

 

b) Proof of dismissal

The employee has to prove that there has been a dismissal. In most cases that is not difficult to do. But if the employee relies on the failure to renew a fixed term contract, the employee must prove all the elements of that dismissal. They are:

 

  • the employee is employed on a fixed term contract

 

  • that the employer has failed to offer a renewal of that contract on the same or similar terms

 

  • the facts from which a court or arbitrator can objectively infer a reasonable expectation of renewal.

 

If the employee relies on the failure to permit an employee to resume work after maternity leave, the employee has to prove —

 

  • that she was on maternity leave

 

  • that she returned to work

 

  • that she was not permitted by the employer to resume her work

 

If the employee relies on selective re-employment, the employer must prove —

 

  • that the employee and others were dismissed for the same or similar reasons

 

  • that one or more of those employees were re-employed

 

  • that the employee and others were not offered re-employment

 

If the employee relies on constructive dismissal, the employee has to prove —

 

  • the facts from which a court or arbitrator can objectively infer that it was intolerable for the employee to continue to work there

 

  • that the employee resigned for that reason.

If the employee relies on transfer dismissal, the employee has to prove —

 

  • there was a transfer from one employer to another

 

  • the new employer provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer, and

 

  • that the employee resigned because of the less favourable conditions or circumstances.

 

c) Date of dismissal

For the purposes of establishing whether an application to the CCMA in respect of an allegedly unfair dismissal has been brought within the requisite time period, it may be necessary to establish the date of dismissal.

In terms of section 190 of the LRA, the date of dismissal is the earlier of either —

 

  • The date on which the contract of employment terminated; or

 

  • The date on which the employee left the service of the employer.

 

If an employer has offered to renew a contract on less favourable terms, or has failed to renew a fixed-term contract, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of its intention not to renew the contract.

If the employer refused to permit an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work. If an employer refused to reinstate or re-employ an employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee.

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