Dismissal for exercising statutory rights

Abstract

Since the advent of constitutional democracy, there has been a steady growth in the volume of employment and labour protection legislation.1 More than a decade following the enactment of the new labour code has witnessed an avalanche of decisions of courts and arbitration awards of labour adjudicatory tribunals.2 Many of them involve unfair dismissals generally, unfair suspensions,3 residual unfair labour practices,4 disputes over promotion hinging on affirmative action, employment equity and unfair discrimination,5 the recurrent problem of jurisdiction,6 and review of arbitration proceedings.7 While wage and disputes8 on the one hand, and strikes9 on the other will always feature as perennial events in the labour-management calendar, truly important interface over several years has been dismissal of employees for automatically unfair reasons. 1 See eg, Labour Relations Act 66 of 1995; Basic Conditions of Employment Act 75 of 1997; Employment Equity Act 55 of 1998; Educators Employment Act 76 of 1988; Promotion of Administrative Justice 3 of 2000; Protected Disclosures Act 26 of 2000; Public Service Act (Proc 103 of 1994) Skills Development Act 97 of 1998; Skills Development Levies Act 9 of 1999; Unemployment Insurance Act 30 of 1966; The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. 2 See generally; Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 3 Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC); MEC for Tourism Affairs: Free State v Nondumo & others (2005) 26 ILJ 1337 (LC); SAPU & another v Minister of Safety & Security & another (2005) 26 ILJ 524 (LC). 4Department of Finance v CCMA & others (2003) 24 ILJ 1969 (LAC). 5 See eg: Minister of Finance & another v Van Heerden (2005) 26 ILJ 1593 (CC). For a detailed discussion: Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 6 See eg: Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA). See also Pretorius SC, P ‘A dual system of dismissal law: Comment on Boxer Superstores Mthatha & another v Mbenya (2007) 28 ILJ 2209 (SCA) (2007) 28 ILJ 2172; 7 See generally Carephone (Pty) Ltd v Marcus NO & others1999 (3) SA 304 (LAC); Sidumo & another v Rustenburg Mines Ltd & others (2007) 28 ILJ 2405 (CC). 8 See generally, Du Toit, D ‘What is the future of collective bargaining (and Labour Law) in South Africa?’ (2007) 28 ILJ 1405; Landman, A ‘The duty to bargain – an old weapon pressed into service’ (2004) 25 ILJ 39. 9 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC); PSA v Minister of Justice & Constitutional Development & others [2001] 11 BLLR 1250 (LC). See also Myburgh, JF ‘100 years of strike law’ (2004) 25 ILJ 962. 8 In pith and substance, the study concerned with dismissals that undermine the fundamental values that labour relations community in our country depends on to regulate its very existence. In the first part of the study, the constitutional and statutory framework will be briefly considered. An early appreciation of the constitutionalisation of the right to fair labour practices will provide a point of reference for evolving contemporary labour law corpus on automatically unfair dismissals. The second part takes a frontal examination of novel questions of constitutional vintage concerning automatically unfair dismissals. In turn, this raises questions of dismissals for exercising statutory employment rights. The other aspects are instances of employee victimisation resulting from lodging a grievance, protected disclosures, as well as trade union activities. Also arising are dismissals that can be ascribed to unfair discrimination. While the first part of this study concentrates on those situations where the employer has victimised and/or dismissed for exercising statutory rights, part three examines that question which has vexed the Labour Court, Labour Appeal, and to a lesser extent the Supreme Court of Appeal in recent times, the intersection between automatically unfair dismissals on the one hand, and corporate restructuring, on the other. In effect, the contentious issues naturally call for discussion: the uneasy relationship between corporate restructuring and collective bargaining, dismissal of protected strikers for operational reasons, dismissals in support of employer’s demands as well as dismissals of transferred employees consequent to transfer of undertaking. Before moving onto the heavyweight topic of automatically unfair dismissals, it is perhaps appropriate at this stage to reflect on the constitutional and statutory framework underpinning the Labour Relations Act 66 of 1995.