Dismissal takes place when the contract is terminated at the instance of the employer and entails some act that denotes that the employer has brought the contract to an end. A dismissal may be effected by word or by contract.
The Labour Relations Act (LRA) defines dismissal as follows in section 186(1):
(a) an employer has terminated employment with or without notice;
(b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer –
(i) to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms or did not offer to retain the employee; and
(c) an employer refuses to allow an employee to resume work after they –
(d) took maternity leave in terms of any law, collective agreement, or contract of employment; or
(i) …
(e) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
(f) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee (constructive dismissal);
(g) an employee terminated employment with or without notice because the new employer, after 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.
The common denominator of the various forms of dismissal is that all of them are ultimately caused by the employer. Dismissal, by definition, is not initiated by the employee, nor is it something that merely happens.
Unlawful and unfair dismissals
The right not to be unfairly dismissed (section 185 of the LRA) was not initially recognised under the common law. The common law has been concerned with unlawful dismissals only. Provided the required notice is given to an employee, dismissal is lawful in terms of the common law. The courts can therefore not inquire into the reason for the termination of the contract of employment, or the procedure that was followed prior to the dismissal.
A dismissal is unfair if it is not affected for a fair reason and in accordance with a fair procedure. The Act has rendered dismissals for certain reasons impermissible in any circumstance, and confined permissible reasons for dismissal to three: misconduct by, or incapacity of the employee, and those related to the employer’s operational requirements, provided that the latter reasons are “fair”, and provided also that before dismissing for these reasons the employer follows a fair procedure.
It is important to grasp the difference between the termination of an employment relationship under the common law and dismissal under the LRA.
Under the common law, a termination not permitted by the common law is treated as a breach of repudiation of the contract. In that sense, it is “unlawful”, and entitles the employee to such damages as can be proved. Under the LRA, however, a breach or repudiation of the contract is not the central concern of the Labour Courts. The court is charged by the LRA with determining whether the dismissal is fair.
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