Cases listed under subject matter

Automatically unfair dismissal

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Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrain Centre (JS178/09) [2011] ZALCJHB 7 (16 February 2011)

Dismissal because of HIV status is discrimination prohibited by s 187(1)(f) and is therefore an automatically unfair dismissal.

BEMAWU obo Manley Mohapi v Clear Channel Independent (Pty) Ltd (2010) 31 ILJ 2863 (LC)

Only conditional dismissals can constitute automatically unfair dismissals under s 187(1)(c) of the LRA. Final dismissals can never be "to compel the employee to accept" a demand and will not be automatically unfair.

BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another (JA 86/18) [2020] ZALAC 22 (18 May 2020)

If an employee's dismissal is based on a retirement age imposed without consent, this may constitute an automatically unfair dismissal and unfair age discrimination.

CWIU & others v Algorax (Pty) Ltd [2003] 11 BLLR 1081 (LAC)

Where a dismissal compels the employee to agree to the employer's demand to change terms and conditions of employment, it will be automatically unfair.

DBT Technologies (Pty) Ltd v Garnevska (JA61/2018) [2020] ZALAC 26 (18 May 2020)

The dismissal of an employee for filing a grievance, whilst potentially unfair, would not constitute an automatically unfair dismissal under s187(1)(d) of the LRA.

De Bruyn v Metorex Proprietary Limited (JA 40/2020) [2021] ZALAC 18 (21 July 2021)

In defending an allegation of an automatically unfair dismissal under s187(2)(a) of the LRA on the basis of an inherent requirement of the job, this must refer to a permanent attribute that forms an essential element in performing the job.

Ernstzen v Reliance Group Trading (Pty) Ltd (C 717/13) [2015] ZALCCT 42 (18 May 2015)

An employee can only claim automatically unfair dismissal based on discrimination due to disability if s/he can show that the real reason for the dismissal was that s/he was disabled.

FAWU & others v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC)

It is not automatically unfair to dismiss employees who refuse to work on a public holiday where it is operationally justifiable to compel work.

FGWU & Others v Minister of Safety and Security & Others [1999] 4 BLLR 332(LC)

A dismissal of a protected striker is automatically unfair under section 187(1)(a) of the LRA

Fry' Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZA LAC 25 (6 December 2002)

In order to fall within the ambit of section 187(1)(c) of the LRA, a dismissal must have the purpose of compelling employees to accept a demand. This excludes a dismissal that is final and irrevocable.

Harding v Petzetakis Africa (Pty) Ltd (JS 1024/2009) [2011] ZALCJHB 81 (14 September 2011)

It is an automatically unfair dismissal if an employee is dismissed for refusing to dismiss two other employees without any kind of hearing.

Hofmeyr v Saaiman t/a SA Endovascular Group Practice (C599/2017) [2019] ZALCCT 39 (3 December 2019)

An individual employee cannot rely on s187(1)(c) of the LRA to allege an automatically unfair dismissal, as the section refers to "employees", not "employee".

Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37 (21 July 2020)

To succeed in a claim for automatically unfair dismissal based on disability, factual causation and legal causation must be established.

Mackay v Absa Group & another [1999] 12 BLLR 1317 (LC)

Victimisation in the form of dismissal resulting from an employee filing a grievance will constitute an automatically unfair dismissal.

Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC)

Where an employer dismisses an employee because she is pregnant, this will be an automatically unfair dismissal.

National Union of Metalworkers of South Africa v Fry's Metals (Pty) Ltd (judgment given by SCA 20 April 2005)

If an employer retrenches employees because they refuse to amend terms and conditions of employment, this will not be an automatically unfair dismissal if the employer intended the dismissals to be final.

National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another (CCT178/19) [2020] ZACC 23 (27 October 2020)

In assessing automatically unfair dismissals under s187(1)(c) of the LRA, courts are required to determine the main, dominant or most likely cause of the dismissal.

National Union of Public Service & Allied Workers and Others v National Lotteries Board (CCT 75/13) [2014] ZACC 10 (10 April 2014)

Dismissal for participating in lawful conduct under the LRA, constitutes an automatically unfair dismissal under section 187 (1)(d) of the Act.

NUMSA & others v Dorbyl Ltd & another (2004) 25 ILJ 1300 (LC).

If the reason for the dismissal of employees during a strike is the participation in a protected strike, and not the employer's operational requirements, then the dismissals will be automatically unfair in terms of s 187(1)(a) of the LRA.

NUMSA and Another v Aveng Trident Steel (A Division of Aveng Africa Proprietary Limited) and Others (JA25/18) [2019] ZALAC 36 (13 June 2019)

The essential inquiry under s187(1)(c) of the LRA is whether the fundamental reason for the dismissal is the refusal to accept proposed changes in employment, based on factual and legal causation.

NUMSA obo members v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) (JS596/15) [2017] ZALCJHB (13 December 2017)

Regarding dismissals for refusing to change working conditions, it is only when all three elements exist - a demand, a refusal to agree to that demand, and thirdly a dismissal that was as a result of that refusal - that this qualifies as an automatically unfair dismissal.

POPCRU and Others v Department of Correctional Services and Another [2010] 10 BLLR 1067 (LC)

If an employer differentiates for no good reason between male and female employees with regard to enforcing the dress code, this may constitute unfair discrimination. A dismissal for failing to comply with an instruction to adhere to the dress code may be automatically unfair.

Rubin Sportswear v SACTWU & others (2004) 25 ILJ 1671 (LAC)

If there is no normal or agreed retirement age, it will be automatically unfair to dismiss an employee at an.

SACTWU & others v Berg River Textiles LC 63/2001, judgement date 4 November 2011

A neutral workplace rule or policy which is applied to all employees may be discriminatory if it offends against an individual employee’s religious convictions, even where there was no motive and intention to discriminate.  The employer must establish that it has taken reasonable steps to accommodate the employee’s religious convictions.

SATAWU obo Rune v Bosasa Security (Pty) Ltd (C 527/06) [2013] ZALCCT 11 (13 May 2013)

If the employees' participation in the strike was the "main" or "dominant", or "proximate", or "most likely" cause of their dismissal, it is automatically unfair.

SATAWU obo Rune v Bosasa Security (Pty) Ltd (C 527/06) [2013] ZALCCT 11 (13 May 2013)

An award of compensation in cases of automatically unfair dismissal is not akin to damages or mere pecuniary loss. It goes further - it is also designed to send a clear message to all employers that such conduct is unacceptable.

Seaward v Securicor SA (Pty) Ltd (LAC Case no: JA 68/06)

If an employer penalises an employee for exercising the right to represent his co-employee in a disciplinary inquiry, that is victimisation rendering the dismissal automatically unfair.

Securitas Specialised Services (Pty) Ltd v Kabelane (2021) 42 ILJ 833 (LAC)

A court will assess whether the dismissal was because of participation in proceedings under the LRA or whether in doing so he disregarded the employer's interests.

Solidarity obo Wehncke v Surf4Cars (Pty) Ltd (JA63/11) [2014] ZALAC 6 (20 February 2014)

A dismissal is automatically unfair when the dismissal is for the purpose of compelling the employee to agree to the employer's demand and such dismissal is temporary, pending the acceptance of the changes.

Standard Bank of South Africa v CCMA & others (2007) 16 LC 8.29.11

If an incapacitated employee is dismissed unfairly, the dismissal is automatically unfair because people with disabilities constitute a designated group.

TGWU & others v Coin Security Group (Pty) Ltd (2001) 22 ILJ 968 (LC)

Where an employer wishes to change the conditions of employment and makes a demand of the workers to accept this change, the refusal to accept the demand cannot result in a dismissal. This will be an automatically unfair dismissal.

Wardlaw v Supreme Mouldings (Pty) Ltd (2004) 25 ILJ 1094 (LC)

If an employee alleges an automatically unfair dismissal because of her pregnancy, the employer bears the onus of proving that a fair reason exists for a dismissal unrelated to the employee's pregnancy.