Automatically unfair dismissal of an individual employee under section 187(1)(c) of the Labour Relations Act 66 of 1995

Abstract

The right to fair labour practice is guaranteed in terms of section 23 of the Constitution. The right includes the rights of both employees and employers. In terms of the Labour Relations Act 66 of 1995, employees have the right not to be unfairly dismissed, on the other hand, employers have the right to dismiss for three of the recognised grounds, namely: misconduct, incapacity and operational requirements. If the right of the employer to dismiss is to be upheld, the right of the employee not to be dismissed unfairly should also be upheld. However, in Jacobson v Vitalab (2019) 40 ILJ 2363 (LC) the Labour Court when dealing with whether individual employees enjoy protection of section 187(1)(c) of the Labour Relations Act 66 of 1995, the court held that the provision does not apply to individual employees. The study determines whether the amended provision by the Labour Relations Amendment Act 6 of 2014 in section 31 is meant to exclude protection to individual employees or to merely promote an orderly collective bargaining process, by ensuring that employers do not use dismissal as an economic weapon. Moreover, the study aims to examine the primary aim and objectives of the Labour Relations Act 66 of 1995 to determine whether the Labour Court misdirected itself. This is done by examining the right to fair labour practice, how the right to operates to protect employees and employers in matters of mutual interests, i.e. disputes of rights and disputes of interests and the right not to be unfairly dismissed of employees.