Clarity crucial on dismissal for refusing unfair demand
Publish date: 27 November 2019
Issue Number: 314
Diary: Legalbrief Workplace
The Labour Relations Act (LRA), which generally protects employees in SA against unfair dismissal, as well as being subjected to unfair labour practices, was amended in January 2015 to clarify an issue around a specifically harmful category of dismissal, namely when an employee may be considered to have been dismissed because of ‘a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer.’ Bradley Workman-Davies, director and labour law specialist at Werksmans Attorneys, writes in a report on the Polity site that clarity on this issue is crucial, as any dismissal which takes place for this reason is considered to be automatically unfair in terms of section 187(1)(c) of the LRA, and could entitle the dismissed employees to up to 24 months' compensation – double the maximum amount to which an employee who is simply dismissed unfairly may be entitled to. Workman-Davies writes that recent case law, the Labour Appeal Court case of National Union of Metalworkers of SA & others v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) & another (2019) 40 ILJ 2024 (LAC), (Aveng Trident), and the Labour Court case Jacobson v Vitalab (2019) 40 ILJ 2363 from the last quarter of 2019, has tested this scenario, and has started to give further details as to when an employee can avail themselves of the right not to be dismissed for this reason. He says that after the courts' guidance, it is now much clearer that not every failed negotiation which leads to an employee being dismissed can result in an automatically unfair dismissal claim, and the scope for such remedy has been narrowed and explained.