“Life is so unfair for some of us who do nothing wrong.” – Anonymous
Remember the song ‘Heat of the Moment’ by Asia, or is this before your time? Well, that is the song that comes to mind when we are consulted by members who were told to “F..ck off!” Isn’t it mind-blowing how we all lose focus when we become irate with someone? Well your employer is no different and do sometimes act in breach of the Labour Relations Act 66 of 1995 (LRA) when they heatedly ‘chase’ employees away from the workplace, without giving them an opportunity to give their side of the story. Not only are the actions of the employer outside the LRA, it directly impacts on procedural- and substantive fairness relating to the termination of your employment.
In this article, we explore the legitimacy of a dismissal by an Employer when he/she instructs employees to leave the premises, without following due process, without providing reasons, and without a dismissal letter being given.
Is it a Dismissal?
The burden of proof of establishing whether there was a dismissal rests with the party alleging that there was a dismissal. In the Supreme Court of Appeal case of African National Congress v Municipal Manager, George Municipality & Others (2010) 31 ILJ 69 (SCA) the judge found that any party who wants to terminate a contract of employment has to “unequivocally communicate” his/her intention to the other party. In order to be successful in proving an unfair dismissal, there has to be a so-called meeting of minds between the parties. That is, the employee has to be aware, without any doubt, that his/her contract of employment was terminated through the conduct of the employer.
In Makosi v Nqanqdo Trading Enterprise (2016) 25 CCMA, Makosi was employed as a Supervisor. His employer informed him that his terms and conditions of employment (working hours and wage) will be reduced. It was clearly stated that there will be no job for him, should he decline the offer. The Employee did not accept the offer and immediately claimed an unfair dismissal. At arbitration, Makosi had to prove the existence of an employment relationship, by way of a Letter/Contract of Employment or payslips; and that he was dismissed in compliance with section 186 of the LRA. In essence, it was confirmed that the employee must show “some overt act by the Employer that is the proximate cause of the termination of employment.” This act may include being chased away by the Employer, with the intention of not welcoming the Employee back at all; however, will not include the instance whereby an Employer tells an Employee to leave the company premises to ‘cool down and come back tomorrow’.
In line with Section 192 of the LRA, Makosi had to show the existence of a dismissal. In order to discharge this onus (burden of proof), the Employee will need to furnish evidence (documentary or witness testimony) to confirm the dismissal, should the Employer dispute that a dismissal took place. Once established that a dismissal took place, the onus will shift to the Employer to prove that the dismissal was both procedurally and substantively fair.
In most instances where the employer chased an employee off his/her premises, the Employer will allege that the employee deserted from their position, or resigned. It is therefore critical that if you do find yourself in such a scenario that you contact MISA to help you to establish whether you were dismissed or not. Alternatively, you need to engage with your employer on e-mail; WhatsApp or SMS to have written confirmation that he/she does not want you back.
Food for thought is found in Rham Equipment (Pty) Ltd v Mafani NO and Others (JR 1385/2007)  ZALCJHB 134 (8 July 2011). The Labour Court in having regard to all facts and the circumstances of the alleged dismissal held that ‘On an objective assessment of the available evidence, I find that the employee decided to terminate the employment relationship, following the altercation with Alcaraz. Alcaraz did not intend to dismiss the employee, and his words (although harsh) were not intended to convey a dismissal, and were not understood as such. At best the employee understood that he had the option of resigning if he refused to work with Alcaraz, as Lloyd had done.’ In this case, the employer told Mafani to ‘f..ck off’, yet it was not intended to be a dismissal.
As pointed out above, employers do make mistakes, lose focus and make ‘snap judgements’ by chasing employees off of their premises or telling them to ‘f..ck off’, only to realise soon thereafter that it was a mistake. The Employer has the right to correct their wrong by requesting the employee to return to work. Refusal of such as request by the employer will make it extremely difficult for an employee to prove an unfair dismissal.
In the matter of Mkhonto v Ford NO and Others (JA61/99)  ZALAC 12 (30 March 2000) an Employee was dismissed without due process, however the Employer realised their mistake and offered “unconditional reinstatement” to the Employee. The Labour Court held that the claim for compensation was insupportable, due to the fact that the employee refused to accept the reinstatement, and provided no reason for the refusal. On appeal, the Labour Appeal Court confirmed that the employee’s refusal to accept the offer of reinstatement was grossly unreasonable and upheld the judgment of the Labour Court.
Dismissal Letter without Process
In another type of scenario, employers sometimes issue employees with a dismissal letter without following any process. These dismissals are procedurally unfair as it circumvents the audi alteram partem principle, that is ‘listen to the other side’ or ‘let the other side be heard as well’. This was reiterated in Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC) where the Labour Court confirmed that an employer is required to conduct an investigation; give the employee or his/her representative an opportunity to respond to allegations; and only then make a decision. There must be dialogue!
This Labour Court outcome echo the provision of the Code of Good Conduct: Dismissal, specifically item 4 ‘Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken.’ (Own Emphasis)
In summary, if you are chased away or told to ‘f..ck off’, either return to the employer as soon as possible either that same afternoon or the very next working day and engage with your employer. The alternative is to contact MISA immediately or as soon as possible to assist you in determining whether you were in fact dismissed and whether the employer wishes to correct the wrong done to you.
Always remember, MISA is just a phone call away!
(Article by Anel Oosthuizen/Edited by Nichole Turner)
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