Types of Dismissals Can Never Be Legally Justified

The Act states that certain reasons for dismissal will always be unfair. Dismissal for one of the following reasons will be regarded as ‘automatically unfair’:

• An employee takes part in the activities of a union or workplace forum.
• An employee takes part in a protected strike or protest action.
• Employees refuse to accept an employer’s offer on a matter of mutual interest between the employer and employees, such as a wage increase.
• An employee refuses to do the work of someone who is on a protected strike or a lock-out, unless the work is necessary to prevent danger to life, personal safety and health.
• An employee’s pregnancy or any reason related to her pregnancy.
• The employee takes (or intends to take) action against an employer by exercising any right or by participating in any proceedings contained in the Act.
• An employer dismisses an employee for a reason related to a transfer of the employer’s business.
• An employee makes a disclosure in terms of the Protected Disclosures Act 2000.
• The employee is dismissed on arbitrary grounds, such as the employee’s race, age, religion, gender, sexual orientation, or family responsibilities.

However, there are two exceptions to this last class of automatically unfair dismissal:

• An employer may retire someone who has reached the normal or agreed retirement age.
• An employer may fairly dismiss someone if the reason for the dismissal is based on an inherent requirement of the job. For example, a teacher in a religious college who changes his or her faith could be justifiably dismissed.