Determining the True Reason for an Alleged Section 187(1)(c) Dismissal: A Discussion of National Union of Metalworkers of South Africa v Aveng Trident Steel (a Division of Aveng Africa (Pty) Ltd) (2021) 42 ILJ 67 (CC)

On 27 October 2020, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC). Following the judgment, it is now commonplace that the amendment to section 187(1)(c) of the Labour Relations Act, 1995 does not preclude an employer from dismissing employees for a permissible reason, such as its operational requirements, should they refuse to accept a demand. The court confirmed that in cases such as this where they are faced with two opposing reasons for the dismissal, an impermissible reason on the one hand and a permissible reason on the other, an enquiry must be conducted into what the true reason for the dismissal is. However, the approach to be followed in conducting this enquiry caused dissent. Half of the judges were of the view that the correct approach is to follow the causation test set out in SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC), while the other half disavowed reliance on the causation test. Instead, they opted to support the enquiry conducted in Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC). This case note seeks to establish which approach should be followed in determining the true reason for an alleged section 187(1)(c) automatically unfair dismissal.

TEMPORARY EMPLOYMENT SERVICES: CLOSING A LOOPHOLE IN SECTION 198 OF THE LABOUR RELATIONS ACT 66 OF 1995

Section 198 of the Labour Relations Act (hereinafter “LRA”) regulates the employment relationship between a worker (the employee), a labour broker (the employer) and a third party (the client). It also regulates the aspect of liability between the temporary employment service and its client on the one hand in relation to the employee/worker on the other hand. It is with regard to the latter aspect thatthe employee is in a detrimental position as far as the loss of protection against an unfair dismissal as regulated by sections 185 and 186 of the LRA is concerned. The complexity of this kind of relationship is illustrated by means of a case study relating to an unfair dismissal dispute. Legislation regulating the employee’s rights and the employer’s duties upon termination of the contract of employment is also discussed. In conclusion, solutions and recommendations are offered to address the existing areas of concern with regard to section 198(4) and the client’s responsibilities, the interpretation problems within the tripartite employment relationship, as well as the employment contract.

THE LEGALITY OF THE AUTOMATIC TERMINATION OF CONTRACTS OF EMPLOYMENT

The Labour Relations Act (66 of 1995) (LRA) protects employees against unfair dismissal. In terms of section 186(1)(a) dismissal means that “an employer terminated a contract of employment with or without notice”. In order to fall within the ambit of this provision and benefit from the protections afforded by the LRA, an employee must prove that an overt act on the part of the employer has resulted in the termination of the employment contract (Ouwehand v Hout Bay Fishing Industries 2004 25 ILJ 731 (LC)). The onus then shifts to the employer to prove that the dismissal is both substantively and procedurally fair, failing which the employee will be entitled to theremedies afforded by section 193 of the LRA. However, not every termination of an employment contract constitutes a dismissal and a number of scenarios exist where an employment contract terminates lawfully by operation of law. The termination of a fixed-term contract by effluxion of time, termination of the contract due to supervening impossibility of performance and the attainment of a contractually agreed or implied retirement age all give rise to the lawful termination of an employment contract. Similarly the statutory “deemed-dismissal” provisions of application to employees in the public sector provide for the automatic termination of employment contracts in circumstances that the employee is absent without authorisation for a designated period of time. The effect of such automatic termination is that the employment contract terminates by operation of law and not by means of an act of the employer, resulting in the dismissal provisions of the LRA being legitimately circumvented. Labour-broking contracts typically include automatic termination clauses that provide for the automatic termination of employment contracts, between labour-brokers and their employees, when the broker’s client no longer requires the services of such employees. Similarly employers have sought to rely upon grounds of supervening impossibility of performance in order to argue that an employment contract has automatically terminated in the instance of absconding and imprisoned employees. This article will be examining the legality of the automatic termination of employment contracts in these contexts and the impact on employees’ rights to protection against unfair dismissal.

9. Unfair dismissal

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the law on unfair dismissal. The principal cases are discussed in full. It is easy to get lost in the mass of case law and concentration must be kept on the statute and these leading cases. The employer must demonstrate that the reason for the dismissal relates to capability or qualifications, conduct, a statutory ban, or some other substantial reason of a kind to justify the dismissal. An employer must act reasonably in treating a reason as sufficient for dismissal. This is the famous ‘range of reasonable responses’ test. It should be guided by the ACAS Code of Practice 2015 and must follow contractual procedures. The remedies for unfair dismissal include re-employment or compensation.

Employment Law Concentrate

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Employment Law Concentrate helps to consolidate knowledge in this area of law. This seventh edition includes updates on employment law, including further coverage of the employment status, written particulars, restraint of trade, and equal pay. The book includes discussion of recent cases, including Supreme Court ones, and forthcoming amendments to the law are noted where appropriate. The volume also looks at implied terms, discrimination, parental rights, working time, and types of breach of employment contracts and termination of employment contracts. Finally, the text looks at dismissal issues (including both wrongful and unfair dismissal), redundancy, and trade unions. The chapter on trade unions has been transferred to online-only content, available in the online resources for this book.

Unfair dismissal?

Sarah Buxton considers how a fear of Covid-19 is viewed by employment tribunals

Estabilidad de los docentes curriculares de institutos privados reconocidos o adscriptos a la enseñanza oficial : en tiempos de normalidad y en el de la pandemia.

En tiempo de pandemia, el DNU Nº329/2020(B.O.,31/3/2020) del Poder Ejecutivo nacional se dictó en el marco de la emergencia sanitaria por el coronavirus y sus prórrogas decididas por el DNU Nº487/2020 (B.O.,19/5/2020) y el DNU Nº 624/2020 (B.O.,29/7/2020) prohibieron los despidos sin justa causa y por causas económicas y por fuerza mayor por el plazo de 60 días contados a partir de la fecha de su publicación en el Boletín Oficial, desde el 31 de marzo hasta el 29 de mayo de 2020, luego hasta el 28 de julio y más tarde hasta el 26 de setiembre de 2020. Se ha establecido un régimen de estabilidad propia o absolutapara todos los trabajadores privados a los que alcanzan esos DNU, incluidos los docentes privados de cualquier nivel, curriculares o no- pero pro tempore, porque es limitada al plazo de veda. La decisión del Poder Ejecutivo Nacional aparece como constitucional y convencional, adecuada a normas supra legales que él mismo cita y a otras ut supra referidas, como a la jurisprudencia de la CSJN y la CIDH. Pasada la emergencia y la vigencia del DNU, la incógnita está en si se volverá para todos los trabajadores privados en Argentina al sistema de estabilidad relativa impropia o se podrá pasar a una intermedia, como es la que acompaña a los docentes privados mencionados desde 1947, parecida a la del Estatuto de los Trabajadores español para el caso de despido improcedente, o laexcepción del DNU se volverá regla.ABSTRACT: In times of pandemic, DNU No. 329/2020 (BO, 3/31/2020) of the national Executive Power was issued within the framework of the health emergency caused by the coronavirus and its extensions decided by DNU No. 487/2020 (BO, 19 / 5/2020) and DNU No. 624/2020 (BO, 7/29/2020) prohibited dismissals without just cause and for economic reasons and force majeure for a period of 60 days from the date of its publication in the Official Gazette, from March 31to May 29, 2020, then until July 28 and later until September 26, 2020. A regime of own or absolute stability has been established for all private workers to those who reach these DNU, including private teachers of any level, curricular or not - but pro tempore, because it is limited to the closed period. The decision of the National Executive Power appears as constitutional and conventional, adequate to supra-legal norms that it cites itself and to other supra-referred ones, such as the jurisprudence of the CSJN and the IACHR. After the emergency and the validity of the DNU, the question is whether it will return for all private workers in Argentina to the system of improper relative stability or it will be possible to move to an intermediate one, such as the one that accompanies the private teachers mentioned since 1947, similar to that of the Spanish Workers' Statute in the case of unfair dismissal, or the exception of the DNU will become the rule.

Turning around accountability

PurposeThe purpose of the paper is to describe and analyse the nature of accountability for human rights, as enacted by the Business & Human Rights Resource Centre (BHRRC), in this time of globalization and coronavirus disease 2019 (COVID-19). Design/methodology/approachThe authors focus on one case of alleged union-busting and unfair dismissal carried out under the cover of the COVID-19 pandemic. Tracing the action of that case, the authors show how the BHRRC provides a digital platform for dialogues of accountability. The authors use a Latourian theoretical perspective to guide the progress of the study’s analysis.FindingsThe authors find that the dialogues of accountability enacted on the BHRRC platform cannot be satisfactorily characterized in terms of an old politics of hegemony, counterhegemony and counter accounts. The authors find that the accountability enacted on the platform operates in three modes: in a political mode to support the formation of issues and publics and the embedding of norms; in an organizational mode to support the (re)organizing business corporations around scripts of respect for human rights; in a moral mode to keep scruples concerning means and ends and the pursuit of better outcomes, open.Originality/valueThe paper is novel, in that it engages with the part that accounting can play in politics conceived in Latourian terms; in its introduction, a notion of modes of accountability on the foundations of Latour’s exploration of modes of existence; in its challenge to the value of critical accounting conceived in terms of hegemony and counterhegemony.