across the bar

Unfair dismissals

by Nicci - Posted 09 October 2011

2 interesting unfair dismissal cases out of the Johannesburg Labour Court and CCMA were heard recently. 

Automatic termination clause:   can you contract out of the right not to be unfairly dismissed?

The first case (Mahlamu v CCMA & Others (2011) 4 BLLR 381 (LC) dealt with the validity of a contract of employment containing a clause which allowed the employer to automatically terminate the contract if he no longer needed the employee “for whatsoever reason”. The company could at any time, for any reason, simply state that his services were no longer needed.

Mr Mahlamu was employed as a guard by a security company.  When a client cancelled the contract with the company, Mahlamu was told that his services were no longer needed because there wasn’t another position for him.   The Court had to decide if contracts of the type between Mahlamu and the company were allowed by the Labour Relations Act.  It said no - this kind of clause in a contract had no legal effect because it tried to contract out of the dismissal provisions in the Labour Relations Act.  

Contracts between temporary employment services (labour brokers) and their employees often include “automatic termination” clauses which typically provide that the contract terminates automatically if the broker’s client no longer needs the services of the employee – a clause that allows a broker’s client to undermine the right not to be unfairly dismissed is against public policy.

This kind of clause must also be distinguished from “fixed term” contracts, which provides for its termination on the happening of a future specified event, eg. on completion of a project – this is not a dismissal in terms of the Labour Relations Act.

Incompatibility:

Ms Sondio was employed by the University of Fort Hare as the PA to the Dean of Law.  A number of complaints were received about her conduct, eg. fighting with a colleague and circulating derogatory emails about her head of department.  The University decided that the only way to resolve the conflict was to transfer her to another job, but no other departments would accept her.   She was given a notice to consult about retrenching her and when this failed, the University dismissed her for incompatibility.    Ms Sondio then filed a claim with the CCMA for unfair dismissal.

Incompatibility is recognized as a form of incapacity or misconduct, depending on the circumstances.  In either case though, the employer must first determine whether the employee was at fault.   The commissioner found that the University should have charged Ms Sondio with serious misconduct.  Instead, it simply accepted that the relationship between her and the Dean had broken down and decided to transfer her without properly investigating the allegations.   If the case had been treated as incapacity, then Ms Sondio should have been offered counselling.    

The University’s decision to retrench Ms Sondio showed that it did not regard her as being at fault.  The dismissal was therefore substantively and procedurally unfair and Ms Sondio was reinstated.