We find the answer in Section 186 (1) of the LRA.
“Dismissal” means that —
- An employer has terminated a contract of employment with or without notice;
- An employee employed in terms of a fixed term contract of employment reasonably expected the employer —
- 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
- 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;
- An employer refused to allow an employee to resume work after she—
- Took maternity leave in terms of any law, collective agreement or her contract of employment; or
- . . . . . .
[Sub-par. (ii) deleted by s. 95(4) of Act No. 75 of 1997.]
- 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;
- An employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee; or
[Para. (e) substituted by s. 30(b) of Act No. 6 of 2014.]
- An employee terminated a contract of employment with or without notice because the new employer, after a 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. [Para. (f) added by s. 41 (b) of Act No. 12 of 2002 and substituted by s. 30 (b) of Act No. 6 of 2014.]In Steenkamp v Edcon Ltd the Constitutional Court noted that the LRA “does not contemplate an invalid dismissal as a consequence of a dismissal effected in breach of a provision of the LRA”. As a result, it was held, “if a dismissed employee wishes to raise the unlawfulness of their dismissal, they must categorise it as unfair if they are to obtain relief under the LRA”.The court went on to find that section 77(3) of the BCEA does not give the Labour Court jurisdiction to provide a common law remedy for termination of employment in breach of statutory requirements, but that a remedy must be sought within the LRA itself.It was held in Whitehead v Woolworths (Pty) Ltd that a person who has concluded a contract of employment with an employer does not enjoy the status of “employee” until he or she has actually commenced work or, at the very least, tendered his or her services.
This meant that such a person could not be “dismissed” for purposes of section 186, if her or his contract were terminated prior to commencement of work. In Wyeth SA (Pty) Ltd v Mangele, however, Van Niekerk AJ found that such an interpretation is justified neither by the wording of the definition nor the purpose of the statute.
In the matter of Chillibush v Johnston it was held that a company director who was also employed by the company falls within the statutory definition of “employee”.
The relationship as director and the relationship as an employee are governed by separate contracts and automatic termination of the employment contract as a result of the expulsion of a director from the board cannot be permitted. This interpretation was confirmed by the Labour Appeal Court in SA Post Office v Mampeule.
Compiled by Jaques Bloem, with the assistance of LEXISNEXIS, LABOUR LAW THROUGH THE CASES – 01 March 2018