MRL3702 - STUDY UNIT 6 TERMINATION OF AN EMPLOYMENT CONTRACT : DEFINITIONS OF DISMISSAL AND AUTOMATICALLY UNFAIR DISMISSAL questions and answers with detailed solutions

REQUIREMENTS EMPLOYERS MUST COMPLY WITH BEFORE THEY DISMISS EMPLOYEES - ANS1. REQUIREMENTS FOR PROCEDURAL FAIRNESS 2. REQUIREMENTS FOR SUBSTANTIVE FAIRNESS FIRST STEP - ANSDetermine 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 - ANS1. 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 - ANS1. 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 - ANSDoes 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 - ANSUpon 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.