Substantive fairness:

 It’s a fair, valid and lawful reason to dismiss an individual.

 If an employee is dismissed and the reason is unjustifiable, it may constitution at an
automatically unfair dismissal.
 Blameworthiness of employee is considered
 Employer must apply the rules consistently
 Look at mitigating circumstances

Substantive fairness for misconduct:

A person investigating dismissal for misconduct should determine

 The employee contravened a rule regulating his or her conduct

 If the rule was contravened:
 It was valid or reasonable
 The employee knew about the rule or was reasonably aware of the rule
 The rule was consistently applied by the employer
 The dismissal was the appropriate sanction for his or her contravention of the rule.

Derivative misconduct:

 Have actual knowledge of the rule or else he cannot be blamed

 Derivative misconduct: employee failing to disclose information – breach of contract of good
faith.
 The derivative misconduct must be deliberate and look at the effect on the non-disclosure on
the company
 An employer can charge employee with a material breach of contract of good faith.

Appropriate sanction:

 Employer must first consider alternatives of dismissal

 Must look at employees: employees blameworthiness; prior misconduct whereby the employee
was previously warned; employees past disciplinary record ; length of service and the
consequences he was told about in before should any infraction occur.
 A clean disciplinary record and long service= Not a mitigating factor in the case of serious
misconduct.
 Main question: has the employees conduct damaged the employee-employer relationship
irrevocably.
 Guided by a disciplinary code i.e., Code of Good Practice: Dismissal
 The Code: dismissal is the last resort; should test the relationship rendered intolerable.
 The Code which includes a number of reasons related to conduct and capacity – its general.
 If an employee has be caught for minor misconducts or less serious misconduct = May warrant a
Dismissal.
 Employer must prove that the relationship is irrevocable = If fail to lead evidence = Dismissal will
be ruled substantively unfair.
 An appropriate sanction laid out in the: CCMA Guidelines: Misconduct Arbitrations.
Schedule 8
The Code of Good Practice: Dismissal
o Deals with key aspects of dismissal.
o Not a substitute for agreements made in collective agreements; joint-decision making between
employee and employer and; work forums
o Its intentionally general- each case has its own consequences
o Departure from this Code is justifiable.

Fairness of Dismissal:
o A dismissal is automatically unfair if:
 It infringes fundamental rights of employees; trade unions; reasons stipulated under
section 187.
o The reason of dismissal is based on: capacity; operational requirements and misconduct.
o If an employer fails to prove dismissal was fair= dismissal is regarded as unfair

Misconduct
o An employer should establish rules which the employee should adhere to
o The rules must be clear and easily understood the employees
o The aim of rules is to create certainty for the company
o Dismissal should be the last resort = applied in serious misconduct and repeated misconducts
o First, an employee should be warned and given counselling about their conduct
o Repeated misconduct= warrant warnings.
o A formal procedure i.e., a dismissal does not have to be exercised every time a rule is broken

Dismissal for misconduct:

o First offence = Dismissal = Not appropriate [ only if misconduct is of serious nature]
o Examples of misconduct:
 Gross dishonesty
- theft, fraud (normally does not justifies dismissal at first instance regardless of value of
item stolen; employees’ length of service; acting under instruction of superior and if
employee gained no benefit)
- on a balance of probabilities employer must check whether employee was an
accomplice or not.
– Examples of fraud: lying that company car stolen; lying about overtime pay not
performed; lying that you have a drivers license; claim you have certain qualifications;
not disclosing that facing disciplinary action from another employer
 Conflict of interest
- Employee enter into relationship with employers’ competitors
- Serious breach of trust
 Willful damage to property
- Negligence = Employee foresaw his action would have such damage to property
 - If first offence= No dismissal = Counselling and training provided AND THEN,
disciplined
 Willfully endangering safety of others
-Disregard the safety protocols
- Actual injury to others: not a requirement.
If first offence = No Dismissal = Counselling and training AFTER THAT, disciplined
 Assault and fighting
-May be dismissed
- employer must check whether the one employee was an instigator or acting in self
defence
 Sexual harassment
 Gross insubordination
- Refusal to obey the employer’s instructions
- Must be gross or very serious to be sufficient for dismissal
- May be serious even if it occurs once
- Employer prove: employee willfully defied a reasonable and lawful instruction and
challenged authority of employer
 Insolence
- Lack of showing respect to employer
- Example: talking over or shouting at employer; talking in a disrespectful manner
- Action: written warning in first instance
- Dismissal: Act must be serious and willful
- Test: whether employee wanted to test employers’ authority
 Intoxication while on duty
 Collective absenteeism
- Example: Strike or “Stay-aways” by trade unions
- A Stay-away = A protest action = Protected against dismissal or criminal sanction if
protected.
- Cannot plead fear for a “Stay-away”
- Employer can hold a disciplinary hearing guided by Code of Good Practice: Dismissal
- Cannot take into account an individual absenteeism in collective absenteeism.
 Unauthorised use of company car
- Using car for private use may be dismissed
- May in the form of theft may warrant dismissal
 Time related offences
- Onus of proof: employee for their absence
- Cannot dismiss on first instance
- May be attributed to incapacity or misconduct or both
- Employee cannot provide an excuse for not reporting for duty.

Factors to consider for misconduct:

 The nature of the job

 The nature of the misconduct
 The employee’s circumstances e.g., length of service; previous disciplinary record
Probation

 A newly hired employee can be hired on a probationary period = determined by the employee.
 The probationary is determined by the
 Nature of the job
 Amount of time required by the employer to assess the employee’s performance
 Employer should provide the employee with:
 Training
 Instructions
 Evaluations
 Guidance or counselling for the employee to render a satisfactory service.
 Dismissal during a probationary period it should include:
 Employee must be allowed to state his or her case
 Assisted by a trade union representative or a fellow employee
 After the probationary = Cannot be dismissed
 An employee can be incapacity (poor work performance) if:
 Employer has provided employee with guidance or counselling; training; evaluation and
instructions
 And, after a reasonable time, the employees work is still unsatisfactory
 Procedure leading up to the dismissal:
 The employee should look at other alternatives other than a dismissal
 Consider other ways to remedy the issue.
 In the disciplinary hearing, the employee side must be heard and can be assisted by a trade
union representative or fellow employee.

Guidelines for poor work performance

 To determine whether a person is not working in accordance at the required standard it
should be considered:
 Whether or not the employee has failed to meet the standard
 The employee was aware or reasonably expected to be aware of the required standard
of performance
 Employee was given enough time to meet the required standard
 Dismissal was the appropriate sanction

Incapacity (ill health or injury)

o It may be temporary or permanent
o Temporarily unable to work
- Employer will investigate the extent of the injury.
o Employer must look at the alternatives (excluding dismissal) if the employee is unable to
perform for a long time.
o Factors to consider:
- Nature of capacity
- Period of absence
- Status of employee (length of service)
 - Likelihood of recovery
o Permanent incapacity = look at alternative i.e., work around the employee’s incapacity for
example adapt their duties
o In the process of the employer investigating the employees’ incapacity :
- Employee has the right to state his or her side of the story
- Employee may be assisted by a trade union rep. or fellow employee
o Certain types of incapacity: drugs and alcohol abuse = Receive rehabilitation and counselling
o Employee injured at workplace or work-related illness
- Onus on employer to accommodate employees’ incapacity.

Guidelines for dismissing an injured or ill person

To determine whether an employees’ dismissal is unfair it should be considered:

 Whether or not the employee is capable of performing his or her work

 If the employee lacks capability:
- Must look at the extent the employee can perform the work
- Must look at the extent the employees’ circumstances can be adapted
 The availability of other posts suitable for the employee

END OF SCHEDULE 8 CODE OF GOOD PRACTICE: DISMISSAL!!

Pre-dismissal arbitration
 Apply to the Commissioner at the CCMA for arbitration
 Both parties must complete the 7.19 LRA form
 In the case of a dismissal relating to misconduct or incapacity.
 The employer must request the consent of the employee
 It is a substitution of a disciplinary hearing for the employee
 The employer must handle the costs i.e., pay the council the prescribed fee of R3000
 It is used for senior managerial staff
 The employer does not the consent of the employee if this process was already included in the
employees’ contract of employment
 The award is final and binding
 If fail to comply with it: it may be made the order of the court.

Substantive fairness for Incapacity

Incapacity: due to ill health or poor work performance

Test: whether the employee -employer relationship can continue taking into account the facts of the
case?

Factors to be considered:

 Cause of the incapacity

 How it is affecting the employer’s organisation
 Effect of the safety, welfare and morale of other employees
 Likelihood of recovery
 Nature of the incapacity
 The experience and service of the employee (status of the employee)
 How long the person has been absent from work due to incapacity (period of absence)

Substantive fairness for operational requirements:

o Look at the reasoning of the retrenchment

o Factors to be considered:
 Cost reduction
 Economic reasons – to increase profit, reduce operative expenses
 Closing of the business
 Technological reasons
o Must be able to justify why the retrenchment process has to take place and which criteria

Procedural fairness
 Employer has the duty to investigate the allegations of the misconduct.
 Employee must be told about the allegation and given reasonable time to respond (minimum 2
working days).
 Employee must inform employer of his or her decision.
 Employee has the right to appeal the case
  Audi alteram parterm- right to hear other side of the story
 Nemo iudex in sau causa rule- the Chairperson must be independent and impartial

Procedural fairness for misconduct

Employee is told about the charge and his or her rights

The hearing must be conducted ASAP with enough time for the employee to prepare
Witness may be called, cross examination; interpret and representation
The chairperson must be unbiased
Employee must be told what is the verdict in writing including the reasoning and sanctions
imposed
The employee has the right to take the matter to the CCMA or Bargaining Council

Procedural fairness for incapacity

 The employer has the duty to assist the employee in the case of incapacity
 Employer must consult with the employee
 Medical treatment or Transfer should be considered
 Employer must warn employee of the possible consequences of being incapacitated
 Employer must provide training or consider placing the employee elsewhere
 Employee should be given a chance to defend his or her case before dismissal.

Procedural fairness for operational requirements [s 189: Consultation Process]

 Consultation must take place

 Employee must be invited in writing to attend the consultation (given a notice)
 The aim: Employer and employee to reach a consensus about and to avoid dismissals:
o Amount of people who will be retrenched
o How employees will be chosen.
 Employer must allow employees to represent their case
 After the consultation, the employer must select the employees on the agreed upon criteria
 The consulting parties should agree on the following measures;
o How dismissals can be avoided
o Decrease the number of retrenchments
o The timing of the retrenchments
o How to decrease the effects of the retrenchment
o How parties will be chosen
o Severance pay for the employees
 If consensus is not reached the employees may either: strike or take matter to the Labour Court
(NOT BOTH).
 Cannot strike if: employer has less than 50 employees or if employer retrenches below the
maximum amount.
 The number of employees that can be retrenched:
o 50-200 employees = 10 employees retrench
o 201-300 = 20
o 301-400 = 30
 o 401-500 = 40
o 500 and above = 50
 If one employee retrenched = Cannot refer matter to Labour Court
 If one has consented to the jurisdiction of the CCMA = Cannot refer matter to the LC

Automatically unfair dismissal- cannot be classified as misconduct/ incapacity / operational requirement.

Income differentials:
 difference in remuneration between employees at different levels and different occupational
levels.
 Designated employer has the duty to report to the NMWC
 Minister of Labour must guide the designated employer on how to lower the income
differentials
 May be reduced through a collective agreement; comply with a ministerial determination and
norms set by the NMWC
Automatically unfair dismissal: (24 months remuneration)
This when an employee is dismissed without any justification relating to misconduct; incapacity or an
operational requirement.

It includes being dismissed for:

Refusing to comply with the demands of the employer

Falling pregnant intentionally
Acting within the LRA activities
For freedom of association
Dismissal lockout [ Fry’s Metal case and CWIU v Algorax case]
Participating in protected strike
Unwilling to do other employees work who are participating in a protected strike
Unfair discrimination: race, gender, sex, HIV status, marital status, national or ethnic origin,
language, political opinion [ POPCRU case: Rastafarian]
Disclosure of information that is lawfully required
Making a protected disclosure defined in the PDA
Transfer related – when a company is transferred as a going concern.

Going concern: when a company is moved from one employer to another alongside with the employees
automatically.

Employee must prove that the dismissal was due to the transfer alongside with operational
requirements = Employer must prove the true reason for the retrenchment.

Fry’s Metal v NUMSA case and CWIU & others v Algorax case: [automatically unfair dismissals]

Section 187:

 Cannot dismiss an employee for simply refusing to accept the employers demands.
 Aim: to protect employees for dismissal lockouts
 If an employer dismisses employees because they refuse to accept the demands and employer
hires people who are willing to do the work = FAIR!
 A lockout dismissal: employer has the intention to replace the old employees with the new
employees who are willing to accept change.
 Retrenchment: To dismiss employees conditionally – holding the opportunity of re-employment.
 It is not automatic dismissal to: dismiss an employee who is unwilling to sign a written contract
that contains a clause that he is against.

In the Fry’s Metal case

 Similar facts as the Algorax case

 Difference: in the Algorax case, the employees were offered re-instatement and
kept the offer open.
 In this case, the employees were dismissed finally and irrevocably.

In the Algorax case:

 Its about working new shifts

 The employees refused to work the new shifts however the employer gave them time to
change their minds.
 After they were dismissed, the employer offered to re-instate them provided that they work
the new shifts.
 Court said the dismissals constitute as automatically unfair as witnesses said that the
employees were dismissed to make the employees change their minds.
Unfair labour practice (12 months compensation)
Unfair labour practice comes about due to the act or omission originating from the employer to the
employee regarding the:

 Promotion, probation, demotion, training and awarding of benefits [Apollo tyres case]
 Unfair suspension or unfair disciplinary action short of a dismissal
 Occupational detriment in contravention of the PDA [ Tshishonga v Minister of Justice case]
 Selective re-employment

Promotion:
 It’s a managerial prerogative-
- It’s based on the mangers discretion on who to appoint
 Unhappiness about one’s promotion = Not unfair conduct
 Employer must use an objective standard – must be fair and in accordance with procedural and
substantive fairness.
 It includes moving a person to higher position
 Usually its accompanied with: status, money etc.
 If employer cannot justify why a certain employee was promoted or not promoted = UNFAIR!
 It will be unfair if the employer
- Employer Was biased
- Applied the wrong principle
- Applied his or her discretion inconsistently
- Cannot substantiate his or her reasoning
 Procedural fairness
- Employer will follow the company’s procedure or collective agreement or legislation or
practices
- Affirmative Action
- Must follow a fair procedure
- An employee can challenge the competency of the selection panel
- Must consider ‘acting’ employees
- Acting may come with an allowance
 Substantive fairness
- Reasons why an employer decided to promote a certain employee
- Performance at interview
- Affirmative action
 An arbitrator may interfere if employer fails to prove why a certain candidate was chosen.
 There must be link between the reasoning and decision taken
 A person with a lower evaluation may be accepted
 An external candidate may be promoted instead of an internal candidate
 Promised to promoted = not a legitimate reason
 Dispute resolution:
- Compel employer to promote employee (protective promotion)
- Set aside an improper promotion
- Correct improper procedure
Demotion
 Of a lower ranking or status
 Unfair conduct: failure to use an objective standard (negligently or intentionally)
 Used as disciplinary measure when employer decides not to dismiss employee
 Must include:
- A consultation – OR ELSE considered as = UNILATERAL Amendment to employment
contract.
 Can only implement a demotion if the disciplinary code allows for it.

Benefits
 Term benefits = Narrowly interpreted
 Schomeman v Samsung case: A benefit is excluded from remuneration.
 A benefit is an advantage whereby, no work is required from the employee
 A benefit is an extra apart from remuneration
 Apollo tyres case
- Employee wanted to claim benefits under an early retirement scheme
- The plaintiff did not qualify because she was under 55 years
- The plaintiff resigned and referred the matter to the CCMA claiming that its unfair
labour practice.
- Apollo tyres said the CCMA lacked jurisdiction and the early retirement scheme did not
fall as a benefit
- The CCMA said Apollo committed an unfair labour practice and was ordered to pay the
plaintiff her severance pay
- Court said Apollo acted unfairly by refusing to give her early retirement benefits.
 It must be monetary in value
 Issue: rights dispute v interest dispute
 Once a benefit has been awarded it may be taken away through consultation
 Remedy: Compensation

Training
o Onus to provide training: employer
o It would be unfair labour practice for the employer to refuse to provide training for the
employee is the employee reasonably expected it = Employee must prove this

Protected Disclosure Act

 To encourage people to speak out any irregularities that occur within the workplace without any
fear
 No employee may be subjected to occupational detriment if he or she makes a disclosure
protected under the PDA
 Disclosure of information includes:
 Damage r to environment
 Injustices
 Committing of Criminal offences
  Endangerment of safety and health
 Failing to comply with legal obligations
 Unfair discrimination
 Concealing of the above
 Disclosure is protected if:
 Disclosed to legal practitioner
 Disclosed in good faith to the employer
 Cabinet or member of the executive council of the province
 Public protector or Auditor General
 A person who believes the information is true
 Occupational detriment includes:
 Harassment
 Intimidation
 Refusal to promote/ demotion
 Refusal to referral
 Refusal to transfer
 Transfer against will
 Disciplinary action
 Suspension
 Threats
 Variation of employment contract
 Remedy:
 Reinstatement
 Compensation
 Tshishonga v Minister of Justice:
 The applicant made serious allegations about the Minister to the media: irregularities in
the appointment of administrators for insolvent estates.
 The plaintiff was immediately suspended and subjected to a disciplinary inquiry
 The chairperson found that the information released to the media was protected by the
PDA
 Therefore, he was unfairly suspended and disciplined = Constituted as a operational
detriment
 He was awarded 12 months compensation

Probation
A newly appointed employee may be appointed on probation
Time must be reasonable
The probationary period may:
- End = the employee is dismissed
- Extended for the employee to improve
- Provided with a permanent position
Probation dismissal guided by the: Code of Good Practice: Dismissal
If guilty of misconduct = Rules regulating misconduct will apply (substantive and procedural
fairness)
 The probation period is determined by the:
- The nature of the job
- Time required for the employer to see whether the candidate is suitable for the job.

Suspension

Remedy: reinstatement

Two types of suspension: Precautionary and Punitive suspension

Precautionary suspension:

 Suspension pending an inquiry

 Paid suspension
 Or without pay should the employee agree otherwise or its mentioned in a collective agreement
 It should be fair:
- There must be prima facie evidence to prove that the misconduct occurred
- Objectively justifiable to suspend the employee from workplace

Punitive suspension:

o Replaces a dismissal as a sanction

o It’s a fair suspension to remedy the conduct of the employee

Unfair suspension

For a suspension to be fair, the following factors must be looked at:

 Does the employer, prima facie, believe that the employee committed a misconduct.
 The serious of the misconduct
 How the misconduct is affecting the employer’s organisation
 Whether or not the employee will have an influence on the suspension – to destroy the
evidence
 Has the employee-employer relationship broken irrevocably
 The possibility of the employer conducting the same misconduct if they are not suspended.
Dispute resolution process
Unfair Labour Practice & Unfair Dismissal:

Within 90 days from the day of dismissal // within 30 days for Unfair dismissal
Fill out the 7.11 LRA form
Taken for conciliation and the process is for 30 days
If judgement is issued and not satisfied; can issue a non-resolution certificate
Refer matter for arbitration within 90 days
Take matter for arbitration
Within 14 days, award is awarded

Automatically Unfair Dismissal

 Within 30 days from the day of the dismissal

 Fill out the LRA 7.11 form
 Conciliation process: 30 days
 Its either settle with the judgement or get issued with a non-resolution certificate
 Refer the matter to the Labour Court
 Receive the order
Unfair Discrimination: apply the Harksen Test

The Harksen test:

- Is used to determine whether or not the discrimination did in fact take place

It has 3 approaches:

 Whether the discrimination did take place

 If it did take place, whether or not it unfair
 Whether or not it was unfair, use the limitation clause to determine the fairness of the
employer’s act or omission

Listed grounds: onus on employer to prove: the discrimination did not occur and the action was fair and
rational

Arbitrary grounds: onus of employee to prove: discrimination did occur; it was not fair; not objective
and not rational.

Apply to unfair discrimination:

Difference in pay and other terms of conditions may be justifiable if one or more present:

Seniority or length of service

Qualifications or competence
Performance or quality of work produced
Demotion due to operational requirements
Shortage of skills in the market
Temporary employee to allow employee to gain training and experience.

Defenses for discrimination:

 Discriminatory dismissal
- form of automatically unfair dismissal
- has a specific defence.
 The specific defence:
- the inherent requirements of the job
- based on age for retirement.
 SACTWU v Berg River Textiles case: Dismissed due to his religion
- The employee was dismissed because he refused to work on a new shift arrangement
 - The employee was a Christian who refused to work on Sundays as it was against religion
- The court held that the employee must be accommodated to work other shifts
- His dismissal was ruled automatically unfair.
 POPCRU case:
- The employees were Rastafarian and refused to cut their dreadlocks
- The court rejected the fact that they were dismissed based on inherent requirements of
the job
- Found that the employees were unfairly discriminated against based on their religion
and gender
- The females were allowed to wear their dreadlocks
 Kievits Kroon Country Estate v CCMA case: cultural belief // Incapacity v Misconduct
- She was under the belief that she had to go and be trained as a traditional healer and
failure to do so may result in her illness.
- The employee used up all her sick leave days and attended the course for three weeks.
- However, the rules of the company stipulated that an employee cannot be absent for
“x” number of days. ‘
- The employer allowed her to take one weeks leave unpaid.
- Because she applied for unpaid sick leave, she did not have to provide a sick leave note.
- The employer dismissed her for her non-attendance.
- The employee handed the employee a sick note from her traditional healer however,
she was dismissed for misconduct and insubordination.
- The CCMA said that the employee’s dismissal was unfair.
- Because the employer failed to take into consideration the employee’s cultural belief.

SAPS v Zandberg case: Best suitable v equity

 Applicant said SAPS unfairly did not want to promote him

 He believed that he was the most suitable candidate because he scored the highest during his
interview process.
 He said that the post was not open for designated employees only.
 The arbitrator said the SAPS failed to follow their policy because they considered equity over
merit.
 Issue: Should the applicants merit override the requirements of equity enshrined in the EEA?
 Equity means: fairness and justice to all candidates who apply. It does not mean appointing
candidates who less suitable.
 In this case, the commissioner confused merit and equity
 Therefore, the candidate lost the case.
 SAPs had the right to apply their equity plan in appointment of black male applicant.
Duties of a designated employer:

1. Consult with employees

2. Conduct a staff analysis
3. Prepare and implement an employment equity plan
4. Report to the DG regarding the progress of the equity plan.

Aim of Affirmative Action Measures

 To ensure that suitably qualified employees are provided with equal opportunity in all
categories of employment

Measures of Affirmative Action Include:

 To identify and eliminate any barriers which may have adverse effects on people from the
designated group
 To train, retain and develop people from the designated groups
 Preferential treatment and numerical goals for designated groups however, quotas are excluded
(fixed share or limited quantity).
 To promote diversity in the workplace
 To accommodate people from the designated groups.

Designated employer:

 More than 50 employees

 If less than 50 employees, annual turnover is equal or above the annual threshold of a small
business or municipality or state organ
 Can become a designated employer through a collective agreement
 An employer who is not designated may apply to the DG to comply with the rules regarding a
designated employer
 If the Labour Court finds out that an employer unfairly discriminated against an employee, the
LC may force the employer to act as if it’s a designated employer

Designated employer must:

- Assign one or more senior manager to implement and monitor the equity plan
Income differentials:

- Must submit a report which includes the benefits and remuneration in the particular category to
the ECC [ Employment Conditions Commission].
- If there is an income differential = must take measures to reduce the income differentials:
- The measures include:
 Collective agreement
 Sectoral determination
 The norms and benchmarks set by the ECC
 Relevant measures contained in legislation

Monitoring of the EEA

 Can be done by trade unions or employees

 Report contravention to any relevant body

Powers of the Labour Inspector:

 Labour inspectors have the authority to conduct an inspection

 Conferred by the BCEA
 If the labour inspector is of the belief that the designated employer is in contravention of the
Act, the employer will receive a written undertaking to comply
 If the employer fails to comply with the written undertaking = Labour inspector will issue an
order for the employer to comply within a specific period

Review by the DG:

 The DG can conduct a review on whether the employer is complying with the Act
 Can make recommendations for compliance

Power of the Labour Court:

 Can impose a fine; compensation or an appropriate order

A designated employer who willing complies with Chapter III

 Must apply for a certificate from the Minister confirming its compliance

Report

 Once year: 1 October (if become designated after April)

 And then 1st report the following year in October

Designated employees:
Blacks, Indians, coloureds, females and the disabled
It is limited to:
- Those by birth or decent became citizens after 27 April 1994 by neutralisation
 - Or,
- After 26 April 1994, those who would have been entitled to get citizenship by
neutralisation, however, was restricted by apartheid policies.

Direct discrimination:

an employer discriminates against people who belong to a certain or who posses certain criteria
these characteristics that employees are protected against (discriminated due to association) by
the EEA and the Constitution
this form of discrimination cannot be justified.
E.g., male v female

Indirect discrimination:

 when an employer uses a neutral objective to discriminate against people who possess certain
characteristics
 its justifiable – must be in line with the company’s policy
 its discrimination that is applied to everyone.
 E.g., height v weight

Unfair dismissal
Types of unfair dismissal

 Termination with or without notice

 Constructive dismissal
 Selective re-employment
  Refusal or failure by employer to renew a fix term contract on the same or more
favourable terms
 Refusal of employer to allow employee back after her maternity leave- AFTER Absence!!
 Employee provided with less favourable terms after transfer of business
 Employee terminate a TES employee contract if employee has exercised right in LRA or
to avoid being deemed employee of the client
Terminate with or without notice
 Preceded by a: performance hearing; disciplinary hearing or retrenchment
consultation process.
 Process:
- Employer must tell employee about his or her conduct, capacity or operational
requirements.
- Employee not at fault = Provide notice
- Employee with fault = Summary dismissal for misconduct (without notice) or
payment in lieu of notice
Fixed term contract
o Its for a specified period of time or until a certain performance has been completed.
o Determined by the type of the job that must be completed.
o You can claim for an expectation of permanent employment
o Must look at:
- Terms of contract
- Past renewals
- Reason for the fixed term contract
- Assurance that it would be renewed
- Failure to provide reasonable notice
o Why certain people placed under fixed term contract under the threshold:
- Graduate or student to be trained
- For a specific project to be done in a limited duration
- Employed on a temporary basis
- Non-citizen
- To perform seasonal work
- On a mandate
- Have reached retirement age in organisation.
o Section 198B of the LRA
- Employees who are employed on a fixed term contract earning below the
threshold for longer than 3 months are regarded as permanently employed.
o Reasonably expected the employer to
 1. Renew the contract: on same or similar terms but renewed it on less favourable
terms or did not renew it at all
2. To be retained as a permanent employee: [same as no.1]
Selective re-employment:

 Has offered to re-employ certain employees, however, refuses to re-instate the other
employees
 E.g., retrenchment: retrench employees because they refuse to work a new shift
however, re-employs those who are willing to be compliant
Transfer of company as a going concern
 Employees conditions in a contract are less favourable with the new employer than
those of the old employer
 The new employer is obliged offer more favorable conditions
Temporary employment service: unfair dismissal if contract terminated:
 To avoid being deemed as the employee of the client
 When the employee has exercised rights contained the LRA
 Does not apply: capacity; operational requirements and misconduct
 ONLY provision 198 A apply!
Transferring of a business:
 It may be transferred in whole or in part the business, trade and/or service
 A service refers to the business not the services being rendered
 A business is transferred as a going concern if it the immovable; movable assets and the
employees are transferred
 Transfer takes place when the transfer has been completed not on the agreed upon
date.
 When a business has been sold as going concern = New employer substitutes the old
employer
 All the old employer’s rights, duties and obligations such as a collective agreement are
transferred to the new employer = No change unless otherwise
 The old employer does not need the consent of the employees to transfer the business
and old employer cannot retrench the staff
 New employer must provide: similar or more favourable conditions
 If the terms are less favourable for the employee = employee can claim constructive
dismissal
 Employee who is unwilling to transfer must = Resign with notice
 Old and new employer may consult with the employees to vary the transfer agreement
 When a business has been transferred:
 - No change to employee’s length of service
 Old employer and new employer must agree on:
- Will pay the employee accrued entitlements should the employee be retrenched
or company is insolvent
- Leave, severance pay and other payments
 If they cannot agree
- Old employer will be responsible for a period of up to 12 months
Transferring because business insolvent

 Transactions or business made by old employer will be substituted by new employer

 All right and obligations between employee and employer will remain the same with
new employer
 Anything done by the old employer before the transfer will be regarded as being
conducted by the new employer
 Transfer of business does not affect employee’s length of service.

Substantive equality (s 9 (2))

 Recognises that a persons’ opportunities are based on:
- Individual status as a member of a particular group.
 Section 9(2) of the Constitution: everyone has the right
- Enjoy their rights and freedoms
- To promote the achievement of: legislature, equality and other measures that
protect and advance people who have been unfairly disadvantaged.
 It’s about providing the disadvantaged group equal opportunity and equality of
resources
 E.g., affirmative action measures
 Emphasises:
- Eliminating barriers which exclude people within a certain group.
- Cultural, political and legal choices
- Diversity
Formal equality (s 9(3) and (4)):
 Every person who are in the same situation should be accorded with the same
treatment
 Cannot be treated differently based on the listed grounds in section 9 (3).
 It is the equal application of the law
 It makes sure that
- Those who have already suffered in the past are not subjected to any form
subordinating treatment.