MRL3702 Labour Law – Study Unit 6 – University of
South Africa (UNISA) – Summary of Termination of
an Employment Contract and Automatically Unfair
Dismissal
REQUIREMENTS EMPLOYERS MUST COMPLY WITH BEFORE THEY DISMISS
EMPLOYEES - correct answer -1. REQUIREMENTS FOR PROCEDURAL FAIRNESS
2. REQUIREMENTS FOR SUBSTANTIVE FAIRNESS
FIRST STEP - correct answer -Determine if conduct of the employer amounts to
dismissal
Determine whether it is automatically unfair, if not whether it is fair or unfair.
CONTRACT OF EMPLOYMENT MAY BE TERMINATED IN ON OF THE
FOLLOWING WAYS - correct answer -1. resignation by the employee concerned
2. on completion of an agreed period or task
3. by mutual agreement
4. on the grounds of impossibility of performance
5. as a result of the insolvency of the employer
6. as a result of retirement
HOW TO DETERMINE UNFAIR DISMISSAL - correct answer -1. Determine whether
or not there was a dismissal
2. if there was, determine reason for dismissal.
, 3. if dismissal was based on some form of discrimination it could be an automatically
unfair dismissal
4. If reason was not discriminatory, one must determine whether it related to
misconduct, incapacity or operational reasons,
5. Was correct procedure followed
IF NOT DISMISSAL AS DEFINED - correct answer -Does not necessarily mean that
dismissal was unfair. Employee must show that what occurred was dismissal (in one of
the forms listed in the definition) and then the employer will get the opportunity to
show that the dismissal was not unfair.
EFFECT OF COMPULSORY LIQUIDATION OR SEQUESTRATION ON THE
EMPLOYMENT CONTRACT - correct answer -Upon sequestration of the employer
contract of employment a period of 45 days. During this period employee does not have
to render services to the employer and the employee will not receive any payment or
benefits during this period. Employee may claim compensation from the
Unemployment Insurance Fund.
Trustee or liquidator decides whether contracts of employment should continue after 45
days. Unless there was an agreement of continued employment all suspended contracts
will automatically terminate after the date of insolvency.
Employee is entitled to severance pay in terms of section 41 of the BCEA.
TERMINATION OF THE CONTRACT OF EMPLOYMENT THROUGH DISMISSAL -
correct answer -Circumstances and provisions regulation by the LRA -
SECTION 186(1) LRA includes situations where employer has terminated the contract
of employment (with or without notice) - correct answer -1. where employee
reasonably expected employer to renew a fixed term contract of employment on the
same or similar terms but the employer offered to renew it on less favorable
South Africa (UNISA) – Summary of Termination of
an Employment Contract and Automatically Unfair
Dismissal
REQUIREMENTS EMPLOYERS MUST COMPLY WITH BEFORE THEY DISMISS
EMPLOYEES - correct answer -1. REQUIREMENTS FOR PROCEDURAL FAIRNESS
2. REQUIREMENTS FOR SUBSTANTIVE FAIRNESS
FIRST STEP - correct answer -Determine if conduct of the employer amounts to
dismissal
Determine whether it is automatically unfair, if not whether it is fair or unfair.
CONTRACT OF EMPLOYMENT MAY BE TERMINATED IN ON OF THE
FOLLOWING WAYS - correct answer -1. resignation by the employee concerned
2. on completion of an agreed period or task
3. by mutual agreement
4. on the grounds of impossibility of performance
5. as a result of the insolvency of the employer
6. as a result of retirement
HOW TO DETERMINE UNFAIR DISMISSAL - correct answer -1. Determine whether
or not there was a dismissal
2. if there was, determine reason for dismissal.
, 3. if dismissal was based on some form of discrimination it could be an automatically
unfair dismissal
4. If reason was not discriminatory, one must determine whether it related to
misconduct, incapacity or operational reasons,
5. Was correct procedure followed
IF NOT DISMISSAL AS DEFINED - correct answer -Does not necessarily mean that
dismissal was unfair. Employee must show that what occurred was dismissal (in one of
the forms listed in the definition) and then the employer will get the opportunity to
show that the dismissal was not unfair.
EFFECT OF COMPULSORY LIQUIDATION OR SEQUESTRATION ON THE
EMPLOYMENT CONTRACT - correct answer -Upon sequestration of the employer
contract of employment a period of 45 days. During this period employee does not have
to render services to the employer and the employee will not receive any payment or
benefits during this period. Employee may claim compensation from the
Unemployment Insurance Fund.
Trustee or liquidator decides whether contracts of employment should continue after 45
days. Unless there was an agreement of continued employment all suspended contracts
will automatically terminate after the date of insolvency.
Employee is entitled to severance pay in terms of section 41 of the BCEA.
TERMINATION OF THE CONTRACT OF EMPLOYMENT THROUGH DISMISSAL -
correct answer -Circumstances and provisions regulation by the LRA -
SECTION 186(1) LRA includes situations where employer has terminated the contract
of employment (with or without notice) - correct answer -1. where employee
reasonably expected employer to renew a fixed term contract of employment on the
same or similar terms but the employer offered to renew it on less favorable
