| (1) |
A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 49 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) |
a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer; |
[Section 187(1)(c) substituted by section 31 of Act No. 6 of 2014]
| (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 |
[Section 187(g) by inserted by section 42 of Act No. 12 of 2002]
| (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. |
[Section 187(h) by inserted by section 42 of Act No. 12 of 2002]
| (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. |
| 49 |
Section 5 confers protections relating to the right to freedom of association and on members of workplace forums. |
| 50 |
Chapter IV deals with industrial action and conduct in support of industrial action. Section 67(4) and (5) provide— |
| (4) |
An employer may not dismiss an employee for participating in a protected strike or for any conduct in contemplation or in furtherance of a protected strike. |
| (5) |
Subsection (4) does not preclude an employer from fairly dismissing an employee in compliance with the provisions of Chapter VIII for a reason related to the employee"s conduct during the strike, or for a reason based on the employer"s operational requirements. |
Section 77(3) provides—
"A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67.
National Environmental Management Act, 1998 (107 of 1998)
