.

Section 187 Automatically unfair dismissals

A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 549 or, if the reason for the dismissal is
that the employee participated in or supported, or indicated an intention to
participate in or support, a strike or protest action that complies with the
provisions of Chapter IV;50
that the employee refused, or indicated an intention to refuse, to do any work
normally done by an employee who at the time was taking part in a strike that
complies with the provisions of Chapter IV or was locked out, unless that work is
necessary to prevent an actual danger to life, personal safety or health;
to compel the employee to accept a demand in respect of any matter of mutual
interest between the employer and employee;
that the employee took action, or indicated an intention to take action, against the
employer by
(i)
exercising any right conferred by this Act; or
(ii)
participating in any proceedings in terms of this Act;
the employees pregnancy, intended pregnancy, or any reason related to her
pregnancy;
that the employer unfairly discriminated against an employee, directly or
indirectly, on any arbitrary ground, including, but not limited to race, gender, sex,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, political opinion, culture, language, marital status or family
responsibility.
a transfer, or a reason related to a transfer, contemplated in section 197 or 197A;
or
[Para. (g) added by s. 42 of Act No. 12 of 2002.]
a contravention of the Protected Disclosures Act, 2000, by the employer, on
account of an employee having made a protected disclosure defined in that Act.
[Para. (h) added by s. 42 of Act No. 12 of 2002.]

Despite subsection (1)( f )

a dismissal may be fair if the reason for dismissal is based on an inherent
requirement of the particular job;
a dismissal based on age is fair if the employee has reached the normal or agreed
retirement age for persons employed in that capacity.
49
Section 5 confers protections relating to the right to freedom of association and on members
of workplace forums.
50
Chapter IV deals with industrial action and conduct in support of industrial action. Section
67(4) and (5) provide
(4)
An employer may not dismiss an employee for participating in a protected strike or for any
conduct in contemplation or in furtherance of a protected strike.
(5)
Subsection (4) does not preclude an employer from fairly dismissing an employee in
compliance with the provisions of Chapter VIII for a reason related to the employees
conduct during the strike, or for a reason based on the employers operational requirements.
Section 77(3) provides
A person who takes part in protest action or in any conduct in contemplation or in
furtherance of protest action that complies with subsection (1), enjoys the protections
conferred by section 67.
Notes
Whether a dismissal is automatically unfair is essentially an inquiry into its causation; that is,
whether it is based on one of the grounds prohibited by section 187(1). In Wardlaw v
Supreme Mouldings (Pty) Ltd 123f it was accepted that the test of causation elaborated in
SACWU & others v Afrox Ltd 123g in respect of strike-related dismissals should be used to
determine whether an employees pregnancy was the reason for her dismissal. Similarly, in
Kroukam v SA Airlink (Pty) Ltd 123h the same test was applied in evaluating the causation of
a dismissal [Page LRA 8-28(1)] allegedly based on trade-union activity and, in Pedzinski v
Andisa Securities (Pty) Ltd (Formerly SCMB Securities (Pty) Ltd),123i to a dismissal
allegedly for making a protected disclosure. It is submitted that the test is equally appropriate
in relation to other prohibited grounds of dismissal.123j

A dismissal may be automatically unfair irrespective of the manner in which it is effected.

Thus, it has been held that a constructive dismissal124 as well as a retrenchment125 may be
automatically unfair if the reason falls within the scope of section 187.
In McInnes v Technikon Natal 126 the court held that it assumes jurisdiction over a dismissal
dispute when the employee alleges that the dismissal is automatically unfair, not when the
allegation is proved.127
In Janda v First National Bank127a the court was faced with an application for absolution
from the instance in an alleged automatically unfair dismissal dispute. The test to be applied,
Van Zyl AJ held, was whether there was sufficient evidence upon which a reasonable person
might give judgment against the respondent. When an automatically unfair dismissal is
alleged, the sole inquiry is into the reason for the dismissal. Once the employee has proved
the fact of dismissal, the onus passes to the employer to prove that the dismissal was fair. If
the employee claims that his dismissal was for a reason other than that alleged by the
employer, an evidentiary burden rests on the employee to rebut the employers version by
[raising] a credible possibility that an automatically unfair dismissal has taken place.127b
However, nothing in the LRA suggests that an employee must provide prima facie proof of
the reason for dismissal before the court can assume jurisdiction. Furthermore, absolution is
not normally granted when the onus rests on the defendant. The application was accordingly
dismissed.
acts contrary to section 5
In FAWU & another v The Cold Chain127c the applicant, a shop steward and union office
bearer, was offered a managerial position as an alternative to retrenchment on condition that
he relinquish his union positions and, upon rejecting this condition, was dismissed. Finding
that employees have an absolute right to participate in union activities irrespective of their
seniority, Nel AJ held that the dismissal was automatically unfair.
Section 187(1)(a)

A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 549 or, if the reason for the dismissal is
[Page LRA 8-28(2)]

that the employee participated in or supported, or indicated an intention to

participate in or support, a strike or protest action that complies with the
provisions of Chapter IV;50 . . .
49
Section 5 confers protections relating to the right to freedom of association and on members
of workplace forums.
50

Chapter IV deals with industrial action and conduct in support of industrial action. Section
67(4) and (5) provide
(4)
An employer may not dismiss an employee for participating in a protected strike or for any
conduct in contemplation or in furtherance of a protected strike.
(5)
Subsection (4) does not preclude an employer from fairly dismissing an employee in
compliance with the provisions of Chapter VIII for a reason related to the employees
conduct during the strike, or for a reason based on the employers operational requirements.
Section 77(3) provides
A person who takes part in protest action or in any conduct in contemplation or in
furtherance of protest action that complies with subsection (1), enjoys the protections
conferred by section 67.
In Adams & others v Coin Security Group (Pty) Ltd 128 the Labour Court found that the
underlying issue in dispute between the parties was a wage claim, that a strike by the
applicants in support of their claim was protected and that their dismissal was therefore
automatically unfair. On appeal, the Labour Appeal Court in Coin Security Group (Pty) Ltd v
Adams & others129 found that the issue in dispute, as characterised by the applicants union,
was in fact arbitrable and that the strike was therefore unprotected. While a bona fide and
reasonable belief by strikers that their strike is protected may have a bearing on the fairness
of their dismissal, that is not the case where they have been warned that their belief is
mistaken. In this matter the employees had been warned and the judgment of the court a quo
was reversed.
In SAAPAWU Free State & others v Fourie & another,129a on the other hand, farm workers
were dismissed allegedly for engaging in an unprotected strike whereas, on the evidence, it
was apparent that the matter had been referred to the CCMA and that the required notice had
been given. The strike was accordingly protected and the dismissals were automatically
unfair.
In SACWU & others v Afrox Ltd 130 the central issue was whether the dismissal of the
applicants was based on their participation in a protected strike or on the employers
operational requirements. The prohibition on dismissal of strikers, Ngcobo AJP found, does
not preclude an employer from dismissing for operational needs even if those needs were a
consequence of the strike. The test is whether participation in the strike was the main,
dominant or legal cause of the dismissal. The onus is on the employer to prove that the
dismissals were based on an operational reason and that the requirements of the Act were
followed. During protected strikes, it was suggested, retrenchments should be resorted to only
after the employer has considered other options and has paid proper attention to the
possibility of allowing the outcome of the dispute to be dictated by power play.
Similarly, in NUMSA & others v Dorbyl Ltd & another130a the court acknowledged that
protected strikers may be dismissed fairly if the dominant reason for the dismissal is a

genuine operational requirement. However, even if this is so the court must still be satisfied
that the dismissal is procedurally fair.
[Page LRA 8-28(3)]
In Early Bird Farm (Pty) Ltd v FAWU & others130b FAWU members in the employers
farming division who had joined a strike called by FAWU were dismissed because, according
to the employer, they were subject to a collective agreement concluded with another union
and their strike was therefore unprotected. The Labour Appeal Court found that, on the facts,
the action taken by the dismissed employees formed part of a protected strike, and their
dismissal was therefore automatically unfair.
In SATAWU & another v Equity Aviation Services (Pty) Ltd 130c non-union members were
dismissed after joining a strike called by the applicant union. Since every employee has the
right to strike, it was held, the dismissals were automatically unfair. The judgment was
upheld on appeal.130d Once a majority union calls a protected strike, the Labour Appeal
Court held, all employees in the bargaining unit concerned are entitled to strike whether they
belong to the union or not. Non-unionised employees therefore do not have to refer a separate
dispute or deliver a separate notice of their intention to strike.
In NUMSA & others v Edelweiss Glass & Aluminium (Pty) Ltd130e employees taking part
in a protected strike had been dismissed on the grounds that the union had added a demand
(for a 13th cheque) which did not form part of the issues in dispute which had been referred
to conciliation and, as a result, the strike had become unprotected. The Labour Court
disagreed. The rule that a strike may be called only over the dispute that was referred for
conciliation, it was held, is not to be taken literally. Parties may modify and develop their
demands during and after conciliation, and nothing precludes strikers from adding to their
initial demands during the course of a strike. It followed that the strike was protected and that
the dismissal of the strikers was automatically unfair.
Section 187(1)(c)

A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 5 or, if the reason for the dismissal is
...
to compel the employee to accept a demand in respect of any matter of mutual
interest between the employer and the employee; . . .
In MWASA v Independent Newspapers (Pty) Ltd 131 it was held that a unilateral change to
terms and conditions of employment, implemented to avoid retrenchments, is enforceable as
an alternative to retrenchment and creates a dispute of right rather than interest. Under such
circumstances the employer is not obliged to institute a lock-out to compel employees to
accept the change to their employment conditions.
In FAWU v General Food Industries Ltd 132 the employer retrenched a number of
employees immediately after concluding wage negotiations in order to reduce its wage bill.

The Labour Court held that the dismissals were automatically unfair because the employers
action improperly transformed a dispute of interest into a dispute of right. This decision was
reversed on appeal.132a
In Frys Metals (Pty) Ltd v NUMSA & others133 the Labour Appeal Court held that a
dismissal which is final and irrevocable does not constitute a dismissal intended to compel an
employee to accept the employers demand. This ruling was endorsed by the Supreme Court
of Appeal in NUMSA & others v Frys Metals (Pty) Ltd.133a Similarly, in Mazista Tiles (Pty)
Ltd v NUM & others,133b the Labour Appeal Court concluded that the employer, when
dismissing employees on operational grounds, had no intention of later withdrawing the
dismissal and re-employing them. On the contrary, the employer was prepared to hire them as
independent contractors only and their dismissal was occasioned by their rejection of this
change in status. Consequently, their dismissal was not aimed at compelling the employees to
comply with the employers demand and was, therefore, not automatically unfair.
[Page LRA 8-28(4)]
In CWIU & others v Algorax (Pty) Ltd 133c the appellants were dismissed after they refused
to accept a proposed change to their shift system which, the respondent argued, was based on
operational requirements. The Labour Appeal Court held that an employer may dismiss
employees who do not satisfy the operational needs of the business if its purpose is to get rid
of them permanently and replace them with others prepared to work in accordance with its
operational requirements. However, where an employer dismisses workers in the hope that
they will be induced to comply with its needs, the dismissal is for the purposes of compelling
the workers to comply with a demand and is, therefore, automatically unfair. The critical
issue is the purpose of the dismissal. In this case the court concluded that the purpose was to
compel the employees to comply with the respondents demands. The dismissals were
therefore automatically unfair.
In NCBAWU v Hernic Premier Refractories (Pty) Ltd 134 the respondent, after taking over a
business in terms of section 197, embarked on a restructuring exercise and sought to
negotiate new terms and conditions of employment with the union of the transferred
employees. When the union rejected the proposed changes, the respondent declared all posts
redundant and invited the employees to apply for new posts subject to the new employment
conditions. When the employees refused to sign the new contracts of employment they were
retrenched. The court noted that dismissals to compel employees to comply with a demand
are automatically unfair. Although the respondent was in danger of closure, the true reason
for the employees dismissal was their failure to accept [Page LRA 8-28(4)] the new
conditions. The retrenchments were consequently a ruse to get rid of the employees and
their dismissals were held to be automatically unfair.
In NUMSA & others v Zeuna-Starker Bop (Pty) Ltd 135 the respondent locked out
employees who refused to accept its final wage offer and then dismissed them. The dismissal
was held to be automatically unfair.
In Pedzinski v Andisa Securities (Pty) Ltd (Formerly SCMB Securities (Pty) Ltd)135a the
applicant, who worked on a half-day basis for health reasons, was required to work full days
after reporting irregular share-trading involving the executive director, and was subsequently
dismissed. The dismissal was held to be automatically unfair on two grounds. In the first
place, the court found that the disclosures made by the applicant fell within the provisions of

the Protected Disclosures Act of 2000, rendering her dismissal automatically unfair in terms
of section 187(1)(h).135b In addition, the court found that the applicant had been dismissed
because she had declined to accept the proposal of working a full day, which rendered the
dismissal automatically unfair in terms of section 187(1)(c).
In Jabari v Telkom SA (Pty) Ltd 135c it was found that a secondary reason for the applicants
dismissal was the fact that he had declined to accept a supposedly voluntary severance
package. This rendered his dismissal automatically unfair.
[Page LRA 8-28(5)]
Section 187(1)(d)

A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 549 or, if the reason for the dismissal is
...
that the employee took action, or indicated an intention to take action, against the
employer by
(i)
exercising any right conferred by this Act; or
(ii)
participating in any proceedings in terms of this Act; . . .
49
Section 5 confers protections relating to the right to freedom of association and on members
of workplace forums.
In Mackay v Absa Group & another136 it was held that, on a purposive interpretation of the
Act, the exercise of a right conferred by a private agreement between an employer and its
employees should be regarded as protected by the Act. The dismissal of an employee after
lodging a grievance in terms of the employers grievance procedure was therefore
automatically unfair in terms of section 187(1)(d)(i). In CEPPWAWU & another v Glass &
Aluminium 2000 CC 137 a shop stewards constructive dismissal was held to be automatically
unfair because he was exercising his functions as a trade union representative.
In Kroukam v SA Airlink (Pty) Ltd137a the appellant, a branch chairperson of a registered
trade union, was dismissed for gross insubordination after expressing a vote of no confidence
in management, challenging management decisions and seeking to effect the arrest of certain
members of management in contempt proceedings. On the evidence it was found that his
dismissal was directly related to his rights as a union representative, in that the reason for
managements loss of trust in the appellant was its disenchantment with the manner in which
he had sought to represent the interests of the union and its members. This rendered the
dismissal automatically unfair.

In BIFAWU & another v Mutual and Federal Insurance Company Ltd137b the appellant, a
shop steward, was dismissed for dishonestly misleading the CCMA while representing a
colleague in arbitration proceedings. At issue was whether the shop steward, when
representing his colleague, was exercising a right conferred by the LRA and, if so, whether he
was dismissed for exercising that right. On the evidence, the court found that the appellant
had indeed been dismissed for deliberately misleading the arbitrating commissioner and for
persisting in his lies, not for exercising his rights as a trade union representative which status,
it was held, does not confer an unbridled licence.137c The dismissal was, therefore, not
automatically unfair.
In Jabari v Telkom SA (Pty) Ltd,137d where the applicant had been dismissed for
incompatibility, it was found that the main reason for his dismissal was the fact [Page LRA 828(6)] that he had lodged grievances and instituted legal action against the respondent for
alleged unfair practices. The applicant had thus been victimised; consequently his dismissal
was held to have been automatically unfair.
Section 187(1)(e )

A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 549 or, if the reason for the dismissal is
...
the employees pregnancy, intended pregnancy, or any reason related to her
pregnancy; . . .
49
Section 5 confers protections relating to the right to freedom of association and on members
of workplace forums.
In Mashava v Cuzen & Woods Attorneys138 a probationary employee was dismissed on the
grounds that she had delayed disclosing the fact of her pregnancy and that the trust
relationship had broken down. While the employer bears the onus to prove a fair reason for
dismissal, an employee who claims an automatically unfair dismissal must at least prove that
the employer was aware that the employee was pregnant and that the dismissal was possibly
on this account.139 Since there is no duty on an employee to inform her employer of her
pregnancy other than for purposes of the Basic Conditions of Employment Act 75 of 1997,
Landman J found that the true reason for the applicants dismissal was her pregnancy or
reasons related to her pregnancy and that her dismissal was therefore automatically unfair.
In Solidarity obo McCabe v SA Institute for Medical Research139a the applicant had been
employed on a fixed-term contract for about eight months when her superior advised her to
apply for a vacant permanent post. Before the post was advertised the employee informed her
supervisor that she was pregnant and was later informed that her application was
unsuccessful. On the evidence Gamble AJ held that her dismissal was automatically unfair.
In Mnguni v Gumbi139b the employee, in advanced state of pregnancy, was dismissed after
she had complained that she was tired. Her dismissal was found to be automatically unfair.

Similarly, in Niewoudt v All-Pakbathe dismissal of an employee at an advanced stage of

pregnancy, who refused to carry out certain instructions but stated that she would do so after
her return from maternity leave, was found to be for a reason related to pregnancy and
therefore automatically unfair.
In Lukie v Rural Alliance CC t/a Rural Development Specialist 139c the applicant informed
the respondent that she was pregnant and wished to take time off for her confinement. The
manager agreed that she could take leave but later changed his mind and informed her that
she need not return to work after the birth of her baby. The applicant did not return to work
and claimed that she had been unfairly dismissed. The respondent denied that she had been
dismissed. On the evidence, the court concluded that the applicant had been dismissed, that
the reason for her dismissal was her pregnancy and that her dismissal was automatically
unfair.
[Page LRA 8-28(7)]
In Wallace v Du Toit 139d an employee who was dismissed after falling pregnant claimed
automatically unfair dismissal, as well as unfair discrimination in terms of the EEA.
According to the employer it had been agreed that the applicants employment would
terminate if she fell pregnant. The court could find no proof of this and added that, had such
an agreement been entered into, it would have been unconstitutional. Although it cautioned
against the duplication of claims, the court nevertheless awarded compensation for
automatically unfair dismissal as well as damages in terms of the EEA.
In Uys v Imperial Car Rental (Pty) Ltd 139e the applicant, three days after her appointment,
informed her superior that she was pregnant. The superior became angry and, some weeks
later, the applicant was dismissed on the grounds of gross negligence, for having inflated her
previous salary and for unsatisfactory work performance. The applicant claimed that she had
been dismissed because of her pregnancy. On the evidence, the court found, the probable
cause of the breakdown in the employment relationship was the fact that the applicant had
inflated her previous salary. Although her dismissal was not automatically unfair, the court
found it too harsh a sanction and, thus, substantively unfair.
In Vorster v Rednave Enterprises CC t/a Cash Converters Queenswood139f the applicant
claimed that her dismissal was based on her pregnancy but failed to prove that her pregnancy
was the dominant reason for her dismissal.
In De Beer v SA Export Connection CC t/a Global Paws139g the Labour Court held that the
phrase any reason related to pregnancy includes absence due to the need to look after an ill
baby. After the birth of her twins the applicant was granted one months maternity leave
(contrary to the BCEA). She requested that her maternity leave be extended by four weeks
due to the infants illness. The respondent was willing to extend her leave by two weeks and
then terminated her services due to absence. The court observed that section 187(1)(e) must
be seen as a part of social legislation. The law protects women not only while pregnant, but
also while they are attending to the consequences of pregnancies. Where an employee is
denied her full maternity leave and is then dismissed because she needs to look after her
newborn child, it cannot be accepted that the condition of the baby is not linked to the
pregnancy. The dismissal was therefore automatically unfair.
Section 187(1)( f )

A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 549 or, if the reason for the dismissal is
...
that the employer unfairly discriminated against an employee, directly or
indirectly, on any arbitrary ground, including, but not limited to race, gender, sex,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, political opinion, culture, language, marital status or family
responsibility.
49
Section 5 confers protections relating to the right to freedom of association and on members
of workplace forums.
religion
In FAWU & others v Rainbow Chicken Farms140 the dismissal of employees who had taken
a day off to celebrate a religious holiday was not considered automatically unfair in terms of
section 187(1)( f ). Unfair discrimination, it was held, would [Page LRA 8-28(8)] have
occurred if the employer had permitted some employees but not others to take a day off for
religious reasons. Requiring employees to work on religious holidays that are not official
public holidays was found to be justifiable on operational grounds.
age
Where an employer terminates the services of an employee who has reached the agreed or
normal retirement age, it was found in Schweitzer v Waco Distributors (A Division of Voltex
(Pty) Ltd),141 it is not discriminatory and, therefore, not automatically unfair. The reasoning
of the court was that, when an employee reaches retirement age, the employment contract
expires by effluxion of time and termination, therefore, does not constitute dismissal. In this
case it was held that the decision to dismiss was fair and that the employer was not required
to follow a fair procedure.142 In contrast, the court in Rubenstein v Prices Daelite (Pty)
Ltd 142a held that an employer is entitled to dismiss an employee who has reached or passed
the agreed or normal retirement age. Forced retirement of an employee past retirement age is
not automatically unfair and permission to work beyond the retirement age does not amount
to a waiver of the employers right to compel an employee to retire.
In SACTWU & others v Rubin Sportswear143 the court defined normal retirement age as
the age at which the employer requires an employee to retire and not the age at which the
employee may retire if he or she so wishes. In this case the dismissal of employees before
they had reached the normal retirement age was held to be automatically unfair. On
appeal143a the Labour Appeal Court held that, where employees contracts are silent as to
their retirement age, the employer cannot unilaterally impose a retirement age. Without the
employees consent, it was held, such imposition constitutes a repudiation of the contract and,
should the employer dismiss an employee upon reaching the unilaterally implemented
retirement age, such dismissal is automatically unfair. Similarly, in Cash Paymaster Services
(Pty) Ltd v Browne143b the Labour Appeal Court found that compelling an employee to retire

after the employer had unilaterally reduced the mandatory retirement age constituted an
automatically unfair dismissal.
Also in HOSPERSA obo Venter v SA Nursing Council,143c decided under the Employment
Equity Act, the court found that the forced retirement of an employee who had reached the
retirement age unilaterally set by the employer constituted an automatically unfair dismissal
as the employer had failed to prove that the employee had reached an agreed or normal
retirement age.
[Page LRA 8-28(9)]
In Botha v Du Toit Vrey & Partners CC143d Revelas J held, without reference to previous
case law, that an employer was entitled to dismiss an employee who had reached the age of
66, even though no retirement age had been agreed and no normal retirement age could be
established within the employers business. This did not entitle the applicant to remain in
employment until he chose to resign and, on the facts, 65 was accepted as a normal retirement
age for the work the applicant was engaged in. But, while dismissal was justified after that
age had been reached, procedural fairness required that the employee should be consulted in
order to avoid surprise and indignation.143e
In Solidarity obo Dobson v Private Security Industry Regulatory Authority143f the
retirement age, according to the employers policy, was 65. The applicant was employed
when she was 68 and her services were terminated some three years later. The employer
claimed that it was entitled to do so because she had reached the normal retirement age. The
commissioner held that, by knowingly employing the applicant when she was already past the
normal retirement age, the respondent had ignored its own policy and rendered the dismissal
unfair.143g
In Evans v Japanese School of Johannesburg143h the employees services were terminated
on the grounds that she had passed the normal retirement age. The court could find no
evidence of a normal retirement age applicable to the employee and, because her dismissal
was based on age, it was not only automatically unfair but also amounted to unfair
discrimination in terms of the EEA. Noting that there is nothing precluding dual claims, the
court awarded the equivalent of 24 months remuneration as compensation for the
automatically unfair dismissal and an additional R200 000 in damages in respect of the
employers unfair discrimination.143i
Showing that a dismissal has taken place and leading credible evidence that it was based on
age is enough to place an onus on the employer to show that the dismissal was not unfair. 143j
race
In McInnes v Technikon Natal 144 the dismissal of an employee in order to make an
affirmative action appointment was held to be automatically unfair. The employers
affirmative action policy offered no defence because affirmative action cannot justify
dismissal as opposed to the appointment or non-appointment of an employee.
In Auf der Heyde v University of Cape Town145 the employer appointed black contract
employees to specially-created permanent positions by means of an ad hoc procedure but
declined to appoint a white employee to a similar advertised position or to renew his fixed-

term contract. Although the employers actions fell beyond the scope of its affirmative action
policy it was found that no discrimination had been proved since the white employee and the
black employees [Page LRA 8-28(10)] had not been competing for the same posts. Although
the above ruling was upheld on appeal,146 an aspect considered neither by the Labour Court
nor the Labour Appeal Court was whether the creation of separate appointment procedures
based on race amounted to discrimination. To this extent, it is submitted, the issue remains
unresolved.
In Mafomane v Rustenburg Platinum Mines Ltd 146a the applicant, a human resources
officer, resigned after about five months service with the respondent, claiming that he had
been constructively dismissed and that his dismissal was automatically unfair because he had
been subjected to racial discrimination. An allegation of this nature, it was held, involves at
least three questions: whether the employer differentiated by treating the employee less
favourably than other employees; whether that discrimination is based on race; and whether it
was unfair for the employer to discriminate against the employee. The employee bears the
onus of proving the first and second requirements. Once these requirements have been
established, the differentiation is presumed to constitute unfair discrimination unless the
employer proves that it was not unfair (which, it may be noted, can only be done by
establishing that it was based the inherent requirements of the job or an affirmative action
measure).146b On the facts the court rejected the applicants claim that the employers
conduct had been motivated by considerations of race and held that the applicant had failed to
establish race discrimination.
In Biggs v Rand Water146c the applicant, a white woman, was employed on a fixed-term
contract. When her position was advertised as a permanent position she applied but, although
recommended for appointment, the general manager decided (without interviewing either
candidate) that a black woman from another department should be appointed in her place.
The Labour Court found that the employer had unfairly discriminated against the applicant on
the ground of her race, that she had a reasonable expectation of appointment in terms of
section 186(1)(b), and that the employer could not rely on the defence of affirmative action
because its equity policy did not provide for preferential treatment as between members of
designated groups.146d
In Raol Investments (Pty) Ltd t/a Thekwini Toyota v Madlala,146e following verbal and
physical exchanges between a white supervisor and a black employee, the latter was
dismissed for assaulting a supervisor. The employees claim that he had been unfairly
dismissed was upheld by the Labour Court and on appeal the Labour Appeal Court held that
his dismissal had been racially motivated and was accordingly automatically unfair. This
finding was based on the fact that the employee had on a previous occasion been assaulted by
a white employee, who was only given a warning. The Supreme Court of Appeal cautioned
against assuming too readily that an employee had been discriminated against on the basis of
race merely because disparity of treatment coincides with racial differences. Whether an
employee has been discriminated against on the basis of any prohibited ground is a question
of fact. In the present matter the employer had stated that the different treatment meted out to
the two employees was based on [Page LRA 8-28(11)] the fact that in the second case a
formal complaint had been lodged, but not in the first. Unless that explanation is rejected as
no more than a smokescreen to conceal a more sinister motive, it was held, there is simply
no scope for an inference to be drawn that conflicts with that explanation. Leave to appeal
was accordingly refused.

In Mutale v Lorcom Twenty Two CC 146ea the applicant, a bookkeeper, was dismissed after
she had complained about discriminatory practices and an argument with a fellow employee.
As bookkeeper she had insight into the salaries of all the employees and she detected that she
earned less than white female colleagues. The applicant alleged that she was dismissed
because of her complaint and a threat to approach the Department of Labour about the
differential salaries. The respondent claimed that she was dismissed for failing to obey
instructions. The court found that the probabilities favoured the Applicants claim that she
had been paid less than her white counterparts because of her race. Her dismissal was found
to have been automatically unfair and she was awarded 20 months compensation.
sexual harassment
In Ntsabo v Real Security CC 146f an employees resignation after having been sexu-ally
harassed by her supervisor was held to be a constructive dismissal. However, the court
observed that sexual harassment is a form of unfair discrimination for purposes of the
Employment Equity Act, but not for purposes of the LRA. The em-ployee could therefore not
claim an automatically unfair dismissal. In Christian v Colliers Properties,146g on the other
hand, dismissal of an employee for rejecting an employers sexual advances was held to be
automatically unfair. It is submitted that this approach is preferable to that in Ntsabo v Real
Security (above).
disability
In Standard Bank of South Africa v CCMA & others146h an employee was dismissed for
incapacity after sustaining injuries in a car accident. The CCMA found that the employer had
not done enough to assist her and held that the dismissal was unfair. On review, the Labour
Court considered in some detail the employers duty to reasonably accommodate an
employees disability and the defence of undue hardship that is available to the employer, for
which no evidence had been led. Employers, it was held, must adopt a four-stage inquiry
before dismissing an employee for incapacity: (i) Is the employee unable to perform his or
her work? (ii) If not, to what extent is the employee capable of working? (iii) Can the
employees work circumstances be adapted? (iv) If not, is alternative work available? The
court held that an incapacitated employees dismissal without the employer having taken
these steps is not only unfair, but automatically unfair.
In Marsland v New Way Motor & Diesel Engineering146i the applicant had been subjected
to vilification, humiliation and insults after having suffered a nervous breakdown, resulting in
his constructive dismissal. The court found that the dismissal was based on the applicants
mental health and was therefore automatically unfair. The judgment was upheld on
appeal.146ia Whether or not mental ill-health constitutes a disability, the Labour Appeal
Court agreed that discrimination on this ground has the potential to impair the fundamental
dignity of that person as a human being or to affect him in a comparably serious manner in
other words, that mental health amounts to an unlisted ground of prohibited discrimination.
belief
In Zabala v Gold Reef City Casino146ib the Court observed obiter that discrimination on the
basis of an employees aversion to extra-marital affairs could potentially constitute
discrimination on the ground of belief.
Section 187(1)(g)

A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 5 or, if the reason for the dismissal is
...
a transfer, or a reason related to a transfer, contemplated in section 197 or 197A.
In SAMWU & others v Rand Airport Management Company (Pty) Ltd & others 146j the
Labour Appeal Court had occasion to consider dismissal in the context of a section 197
transfer. Because of financial difficulties, management proposed to outsource certain services
as an alternative to retrenchment. The appellant union launched an urgent application in the
Labour Court,146k seeking orders declaring that the proposed outsourcing transactions
constitute business transfers subject to section 197 and ordering that the contracts of the
affected employees be automatically transferred to the contractors on the same terms and
conditions. A unanimous court analysed the dismissals as follows:
Where an employer seeks to transfer a business or a part thereof or a service to another
employer and such transfer would, if implemented, be a transfer of business or undertaking or
service as a going concern as contemplated by section 197 of the Act and is initially prepared
to let the employees go over to the new employer but later dismisses such employees when
there is a dispute about the terms and conditions of employment that they will enjoy after
such transfer to the new employer which is what happened in this case there can be no
doubt that the reason for the dismissal of the employees in such a case is either the transfer or
a reason connected with such a transfer . . . Section 187 provides that such a dismissal is
automatically unfair.146l
In Lotz v Anglo Office Supplies146m the dismissal, prior to the transfer of part of a business,
of an employee who refused to accept transfer to the new employer was held to be
automatically unfair in terms of section 197 of the LRA. The employees claim, however, lies
against the new employer (to whom the business is transferred) because the latter, in terms
of section 197(2), assumes all the employment rights and liabilities of the old employer
unless otherwise agreed with the employees concerned.146n
In Van der Velde v Business & Design Software (Pty) Ltd (2)146o the first respondent, the
applicants employer, was transferred as a going concern to the second respondent. Prior to
the transfer and following various disputes regarding his employment with the new employer,
the applicant had been dismissed. To establish an automatically unfair dismissal in the
context of a section 197 transfer, Van Niekerk AJ found, the following criteria must be
satisfied:

the applicant must prove the existence of a dismissal and establish that the underlying
transaction is one that falls within the ambit of section 197;

the applicant must adduce some credible evidence showing that the dismissal is causally
connected to the transfer in an objective sense;


if the applicant succeeds in discharging these evidentiary burdens, the employer must
establish the true reason for dismissal, being a reason that is not automatically unfair;

if the employer relies on a potentially fair reason as the true reason for dismissal, the court
must apply the two-stage test of factual and legal causation to determine the true reason for
dismissal;

the test for factual causation is a but for test would the dismissal have taken place but for
the transfer?;

if the answer is in the affirmative, the test for legal causation must be applied was the
transfer the main, dominant, proximate or most likely cause of the dismissal in an objective
sense?;146p

if the reason for dismissal was not the transfer itself, it may nonetheless be a reason related to
the transfer;

to decide whether the reason was related to the transfer, the court must determine whether the
dismissal was used by the employer to avoid its obligations under section 197;

if it was, the dismissal was related to the transfer and, hence, automatically unfair.146q
On the facts of the case it was found that the applicant had been dismissed at the instance of
the new employer in an attempt by the latter to avoid its obligation of employing him on his
existing terms and conditions of employment. On appeal the Labour Appeal Court confirmed
that the reason for the dismissal was related to the transfer of the business and, therefore,
automatically unfair.146qa
In Viney v Barnard Mellet Security (Pty) Ltd 146r the applicant, who was the head of his
previous employers bond desk, was dismissed for operational reasons two months after a
merger with the respondent resulted in the latter becoming his employer. The applicant
contended that his dismissal was automatically unfair in terms of section 187(1)(g). The
respondent argued that the reason for the dismissal was the fact that, following the transfer,
the number of employees on the bond desk had increased from five to six. The court noted
that, for the applicants claim to succeed, factual causation (ie, that the dismissal would not
have happened but for the transfer) as well as legal causation (ie, that the transfer was the
dominant cause of the dismissal)146s had to be established. The court, however, confined its
inquiry to the question of factual causation and, on this basis, found that the dismissal had
been automatically unfair. It is submitted that this finding is not in accordance with the test
laid down by the Labour Appeal Court and to this extent does not set precedent.

In Douglas & others v Gauteng MEC for Health146t the respondent, after taking over an
anti-TB association, offered its managers fixed-term contracts at a much reduced salary.
When they objected to the offer, their services were terminated. With reference to the test laid
down in Van der Velde v Business Design Software (Pty) Ltd (above), the court found that
the taking over of the association constituted a transfer of a going concern and that the
dismissals related to the transfer, thus rendering the dismissals automatically unfair.
In Van Zyl v Asanti Safari Trading CC t/a The Hill Kwikspar & another146ta the first
respondents business was transferred as a going concern to the second respondent and,
shortly thereafter, the applicant was dismissed. The applicants contention that this was a
result of the transfer of the business was not disputed. It was accordingly found that the
dismissal was automatically unfair.
In Aviation Union of SA obo Barnes & others v SA Airways (Pty) Ltd & others146tb the
Labour Appeal Court overturned the decision of the court a quo,146tc holding that section 197
of the LRA is applicable to second generation outsourcing. Although the court was
concerned with the applicability of section 197 only and not with dismissals, it can be safely
assumed that should employees be dismissed because of or for a reason related to a second
generation outsourcing exercise, those dismissals would be automatically unfair.
Section 187(1)(h)

A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 5 or, if the reason for the dismissal is
a contravention of the Protected Disclosures Act, 2000, by the employer, on
account of an employee having made a protected disclosure defined in that Act.
[Para. (h) added by s. 42 of Act No. 12 of 2002.]
In Pedzinski v Andisa Securities (Pty) Ltd (Formerly SCMB Securities (Pty) Ltd)146u the
applicant, who worked on a half-day basis for health reasons, was required to work full days
after she reported irregular share-trading involving the executive director, and was
subsequently dismissed. Although the employer claimed that the applicant had been fairly
dismissed for operational reasons, the court found that the disclosures made by her fell
squarely within the provisions of the Protected Disclosures Act 26 of 2000 and that her
dismissal was automatically unfair.
In Charlton v Parliament of RSA146v members of Parliament were held to be employees
and, therefore, entitled to protection in terms of the Protected Disclosures Act in the event of
making a protected disclosure of irregularities committed by MPs. If such a disclosure results
in the dismissal of an employee, it follows that the dismissal is automatically unfair.
In Engineering Council of SA & another v City of Tshwane Metropolitan Municipality &
another146w the High Court accepted that the employees disclosure to the Department of
Labour and Engineering Council, to the effect that the employer employed unqualified
persons to perform dangerous work, amounted to a protected disclosure and held that the
employee was indemnified from any disciplinary sanction. It was further held that the High

Court has jurisdiction to interdict disciplinary action against an employee who has made a
protected disclosure.
Section 187(2)

Despite subsection (1)( f )

a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;
a dismissal based on age is fair if the employee has reached the normal or agreed
retirement age for persons employed in that capacity.
inherent requirement of the particular job
In CWIU v Johnson & Johnson (Pty) Ltd 147 female employees were selected for retrenchment solely on the basis that the retained jobs were deemed to be more suitable for
men. This was found to be prima facie discriminatory and, therefore, automatically unfair,
unless it could be proven that such jobs could be done only by men. In this matter the
employer subsequently invited applications from females for the retained jobs but none were
forthcoming. On this basis it was held that the dismissals were not discriminatory.
In Dlamini & others v Green Four Security147a the employees, all security guards and
followers of the Nazarene faith, were dismissed because they refused to trim their beards as
required by the employer. This, they contended, amounted to automatically unfair dismissal
because the employers requirement discrimin-ated against them on the grounds of their
religion. Although the claim was dis-missed because the applicants were unable to
substantiate the facts on which they relied, the court went on to find obiter that it was an
inherent requirement of the job for security guards to be clean-shaven. It is submitted that this
broad interpretation of inherent requirement is at odds with the weight of authority and that
the strict interpretation adopted in CWIU v Johnson & Johnson (above), and in cases
dealing with unfair discrimination,147b is to be preferred.
normal or agreed retirement age
In Schmahmann v Concept Communications Natal (Pty) Ltd 148 it was held that the
termination of the services of an employee who has reached the normal or agreed retirement
age is not a dismissal and, therefore, cannot be automatically unfair. In Schweitzer v Waco
Distributors (A division of Voltex (Pty) Ltd)149 Zondo J accepted that termination of the
services of an employee who had passed the normal retirement age amounted to dismissal but
found that such dismissal was not automatically unfair. The same principle was applied in
Rubenstein v Prices Daelite (Pty) Ltd,150 where the court added that an employers
permission for an employee to work beyond normal retirement age did not constitute a waiver
of the right to compel an employee to retire.
In SACTWU & others v Rubin Sportswear151 the court defined normal retirement age,
for the purposes of section 187(2)(b), as the age at which the employer requires an employee

to retire and not the age at which the employee wishes to retire. In casu the dismissal of
employees before they had reached the normal retirement age was held to be automatically
unfair. On appeal,151a the Labour Appeal Court held that, where employees contracts are
silent as to the retirement age, the employer cannot unilaterally impose a retirement age.
With-out the employees consent, such imposition constitutes a repudiation of the con-tract
and, should the employer dismiss an employee upon reaching the unilater-ally implemented
retirement age, such dismissal will be automatically unfair.
In Datt v Gunnebo Industries (Pty) Ltd 151b the applicants original contract did not specify a
retirement age. Two months before his 65th birthday, however, he signed a revised agreement
in terms of which the normal retirement age was set at 65 but with the option to continue
working with the agreement of the company. When the applicant turned 65 the
respondents then Managing Director requested him to continue working until such time as
we mutually agree that you should take retirement. Two years later a new MD informed the
applicant that he must retire. The Labour Court found that this constituted an automatically
unfair dismissal. The former MDs action, Steenkamp AJ held, had brought about a new
agreement which extended the retirement age to an unspecified date and precluded the
respondent from relying on the statutory defence afforded by section 187(2)(b) of the LRA.