Can an employer taking disciplinary action, result in it being considered an automatically unfair dismissal?
15 January 2021 | Jean Vermaas
In the matter of James v Namcon (Pty) Ltd it was ultimately decided that the Employers action in disciplining and eventually dismissing the employee was an automatically unfair dismissal in terms of Section 187 of the Labour Relations Act which reads as follows:
(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is-
(a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV;50
(b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
(d) that the employee took action, or indicated an intention to take action, against the employer by-
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
(e) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;
(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;
(g) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or (h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.
(2) Despite subsection (1)(f)-
(a) a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;
(b) a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
In the above matter it became apparent that the Employee, Mr James, became a target of disciplinary action only after he sustained an injury at work, which was ultimately reported late by the employer to the compensation commissioner, and after lodging a grievance against his employer.
The above grievance, was submitted as a result of the employee becoming aware that the claim in terms of the Compensation for Occupational Injuries and Diseases Act was not timeously submitted by his employer to the compensation commissioner and this grievance was directly against his employer.
The Court found that as the employee had a clean disciplinary record before the filing of his grievance and this coupled with the testimony of both the Applicant and Respondent that after the filing of his grievance the employee was disciplined at every corner.
The above was further cemented by the direct testimony of a Mr Wilson, whom mentioned that the Applicant became a problem for the Employer which resulted in the Court finding that the dismissal was ultimately automatically unfair as the employee had exercised certain rights in terms of the Act and subsequently the dismissal fell squarely within section 187(d)1 and was automatically unfair as a result.
In this matter the employer was to pay an amount of compensation equal to 24 months to the employee together with the employee’s legal costs, clearly demonstrating that the consequences can be severe should it be found that the dismissal is automatically unfair.
In conclusion it is to be noted that employers should be careful in ensuring compliance with statutory provisions, such as reporting an injury on duty and further refrain from targeting employees whom exercise their rights in terms of the Act by taking action against their employers.
 (JS 70/2018)  ZALCJHB 189; (2020) 41 ILJ 2845 (LC) ;  1 BLLR 104 (LC) (10 September 2020)
 Act 66 of 1995
 Act 130 of 1993
 James vs Namcon Logistics (Pty) Ltd (JS 70/2018)  ZALCJHB 189; (2020) 41 ILJ 2845 (LC) ;  1 BLLR 104 (LC) (10 September 2020) at Paragraph 109
 Labour relations Act 66 of 1996
 Labour relations Act 66 of 1996