In terms of section 187 (1) of the Labour Relations Act, 66 of 1995 a dismissal is automatically unfair if the employer acts contrary to section 5 of the Act, 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;
• 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;
  • exercising any right conferred by this Act; or
  • participating in any proceedings in terms of this Act;
• the employee's 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
• 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.

Section 5, referred to previously, provides general protection for employees and persons seeking employment from discrimination for exercising any right conferred by the LRA. Automatically unfair dismissals can occur in any form, including the failure to renew a fixed term contract, constructive dismissal, selective non-re-employment etc., provided that the dismissal falls within the categories listed in section 187(1) of the LRA.

To prove that a dismissal was automatically unfair, the reasons that prompted the employer to dismiss the employee must be identified and it must be established that the employer was motivated by one or more of the reasons listed to get rid of the employee.

In the case of Kroukam v SA Airlink (Pty) Ltd the test for automatically unfair dismissals was summarised as follows: "Section 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in s 187 for constituting an automatically unfair dismissal.”

It is important to note that dismissals for misconduct, incapacity and operational requirements can also constitute an automatically unfair dismissal. On the other hand, if an employer has succeeded in proving that a dismissal was not automatically unfair, this does not necessarily mean that the dismissal was fair. Although the dismissal might not be an automatically unfair dismissal in terms of section 187, it may still be unfair.

We urge employers to familiarise themselves with the reasons for automatically unfair dismissals listed in section 187(1) and to be mindful of this especially when drafting policies and procedures, and when taking action against employees.