Automatically unfair dismissals

What exactly is an automatically unfair dismissal as opposed to an ordinary dismissal?

The Labour Relations Act (“LRA”) at section 187 states that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 (this section confers protections relating to the right to freedom of association and on members of workplace forms) or, if the reason for the dismissal is – ……….(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, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility…

In the recent Labour Appeal Court decision of Legal Aid South Africa v Jansen  the court looked at inter alia, the issue of who bears the onus of proving that the dismissal was automatically unfair. In this case the employee claimed that his dismissal was automatically unfair in terms of section 187 (1) (f) of the LRA in that he contended that that he had been unfairly discriminated against in terms of section 6 of the Employment Equity Act 55 of 1998 on the basis of his suffering from depression.

In the matter before the Labour Court the employer was ordered to reinstate the employee with full retrospective effect as well as to pay the employee compensation of an amount equivalent to six months’ salary.

This decision was taken on appeal to the LAC where the appellant (the employer) contended that the employee was in fact dismissed for misconduct and had failed to show that he was dismissed as a result of any medical condition or that there was any causal link between his depression and the misconduct which led to his dismissal.

What is of importance from this case is that the LAC held that where an employee contends that he was discriminated on one of the grounds as listed in section 187 (1)(f)  as above “It is incumbent on an employee alleging that the reason for his dismissal was discrimination on prohibited grounds, to produce sufficient evidence raising a credible possibility that the dismissal amounted to differential treatment on the alleged ground. “

In other words the employee is required to reduce sufficient evidence, on a balance of probabilities, to establish “a credible possibility (approaching a probability) that the reason for dismissal was differential treatment on account of his being depressed and not because he misconducted himself.”

In this case the appeal was upheld and the labour court decision was set aside as the employee failed to meet this evidentiary burden by proving that there was “a credible possibility that the dominant or proximate cause of the dismissal was his depression. The proximate reason for the respondent’s dismissal was his four instances of misconduct. It was not his depression, which at best was a contributing or subsidiary causative factor.”

It is becoming more prevalent in the employment sphere that employees are suffering from conditions caused by numerous factors such as stressors at work, posttraumatic stress disorders, depression and the like. As a consequence employees’ may be found to be performing poorly or conducting themselves in manners which are inappropriate, unacceptable and/or contrary to the employer’s rules and regulations.

If an employee is suffering in this way it is not sufficient for the employee to use the underlying medical condition as an excuse for his poor performance and or misconduct. Employees are recommended to firstly try to obtain the relevant medical and expert assistance and to address their own performance and conduct and where this is not possible, to approach the employer with a view to obtaining some form of intervention to avoid the situation escalating to the point where the employee is dismissed for poor performance or misconduct which but for the underlying cause such as PSTD or depression could have been alleviated if not avoided.

Similarly employers are encouraged to keep abreast of this increasing trend and if and where possible to take remedial steps and/or accommodate employees where they can rather than dismissal as the first resort.

For both parties this can become a frustrating as well as costly exercise which does neither the employer nor the employee any good at the end of the day.

Should there be any doubt in the mind of either an employer or an employee in this regard it is recommended that you first approach an attorney to assist you to avoid the minefield that you may find yourself in.

NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.

For more information please contact Allardyce & Partners on 011 234 2125 or 


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