Abstract

Keywords

Automatically unfair dismissal; operational requirements; causation test; section 187(1)(c); demand; refusal to accept a demand.

……………………………………………………….

1 Introduction

One of the primary functions of the Labour Relations Act1 (hereafter the LRA) is to protect employees against being unfairly dismissed.2 In this regard, the LRA contains several safeguards.3 Of note is section 187(1), which sets out a number of reasons for dismissal which are impermissible and would constitute an automatically unfair dismissal. One of the prohibited reasons is dismissal due to the refusal by employees to accept a demand. Section 187(1)(c) states that a dismissal is automatically unfair if the reason for the dismissal is "a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer."

Notwithstanding the protection afforded by section 187(1)(c), it has been argued that if the employer's demand is based on its legitimate operational needs, a refusal by employees to accept the demand can be met with a dismissal for operational requirements.4 Operational requirements are recognised as a permissible reason to dismiss.5 A conflict thus emerges between an employer's right to dismiss for operational reasons and the right of employees not to be dismissed for refusing to accept a demand.

In National Union of Metalworkers of SA v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2019 40 ILJ 2024 (LAC) (hereafter Aveng LAC), the Labour Appeal Court (LAC) was called upon to decide what the correct interpretation of section 187(1)(c) is.6 In other words, should the provision be interpreted to mean that an employer cannot dismiss for operational requirements, which arise from the refusal of employees to accept a demand. Alternatively, are dismissals for operational requirements permitted where a refusal impacts on the operations of the employer?7

It was contended before the LAC by the applicant union that this provision completely prohibits the dismissal of employees for operational requirements.8 The applicant argued that it was irrelevant if the dismissal resulted from legitimate operational needs.9 The LAC disagreed with the union’s contentions and found that section 187(1)(c) does not preclude an employer from dismissing for operational requirements if the refusal of the demand genuinely impacts on its operations.10

The union appealed to the Constitutional Court (CC), averring that the LAC incorrectly interpreted section 187(1)(c). In National Union of Metalworkers of South Africa v Aveng Trident Steel (a Division of Aveng Africa (Pty) Ltd)11 (hereafter Aveng CC), the CC had to consider whether the LAC reached the correct decision in its interpretation of section 187(1)(c).12

Two different contentions were similarly presented before the CC. On the one hand, the union argued that the dismissal of their members constituted automatically unfair dismissals, as it arose from their failure to accept the employer's demand. On the other hand, the employer maintained that the dismissals were for operational requirements,13 thereby constituting a fair reason for dismissal in terms of sections 188 and 189 of the LRA.14

The CC was ad idem that the decision reached by the LAC was correct.15 It therefore endorsed the finding that section 187(1)(c) does not prohibit an employer from dismissing employees for rejecting a demand that impacts on its operational requirements.16

Furthermore, there was unanimity that in order to determine which of the contentions advanced was correct, the court had to embark on an enquiry

to establish the true reason for the dismissal.17 However, the selection of the approach to be followed to determine what the true reason was, was where the CC was divided.18 The judgment by Mathopo AJ, with which four of the judges concurred,19 supported the causation test followed in SA Chemical Workers Union v Afrox Ltd20 (hereafter Afrox).21 Contrarily, the judgment by Majiedt J, which was similarly endorsed by four judges,22 completely disavowed reliance on the causation test.23 Instead, it validated the conventional method of evaluating evidence, as seen to be applied in Chemical Workers Industrial Union v Algorax (Pty) Ltd24 (hereafter Algorax).25 While Jafta J was one of the judges that endorsed Majiedt's judgment, he penned his own reasons.

This case note seeks to evaluate the two different approaches followed by the CC to determine the true reason for an alleged section 187(1)(c) automatically unfair dismissal. The aim is to establish the most appropriate approach to be followed in disputes of this nature.

Determining the correct approach is a matter of importance. There is likely to be an increase in disputes of this nature now that the highest court has confirmed that section 187(1)(c) does not prohibit the dismissal of employees where the rejection of a demand impacts on an employer's operational requirements. Employers will undoubtedly not be reluctant to dismiss employees under these circumstances. However, not all dismissals effected due to employees' rejection of a demand will amount to a genuine dismissal for operational requirements. Therefore, there is room for potential abuse of the right to dismiss for operational requirements, if not properly guarded. Having certainty on the approach to be followed in determining the true reason for an alleged section 187(1)(c) dismissal would assist in rooting out misuse by employers and would serve as a safeguard to protect the values enshrined in the LRA, notably protecting employees from being unfairly dismissed.

2 The Constitutional Court on Afrox and Algorax

The judgment by Mathopo AJ (hereinafter referred to as the first judgment) supported the approach followed by Aveng LAC.26 The LAC held that as a result of the amendment to section 187(1)(c),27 the purpose or intention of the employer is no longer relevant.28 Whether or not s 187(1)(c) is contravened depends on what the true reason for the dismissal of the employees was.29

The LAC recognised that the test for determining the true reason was laid down in Afrox.30 Firstly, the test requires a determination of the factual causation by asking whether the dismissal would have occurred if the employees had not refused the demand. If the answer is no, the second issue is one of legal causation. Here, it must be established whether the refusal was the main or dominant cause of the dismissal. The fact that Afrox did not specifically deal with a section 187(1)(c) automatically unfair dismissal but rather with a section 187(1)(a) automatically unfair dismissal31 did not in any way affect the relevancy of the test. The LAC proceeded to apply this test to the facts of the case.32

Mathopo AJ emphasised that the determination of the reason for a dismissal is a question of fact, and the enquiry to be followed is an objective one.33 He was convinced that the causation test applies, as section 187(1) states that:

a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is … (c) a refusal by employees to accept a demand ….34

Therefore, fundamental to the enquiry is the reason for the dismissal. Where there is more than one possible reason for the dismissal, one must establish

the dominant or proximate cause of the dismissal through an examination of the facts.35

Mathopo AJ explained that using the Afrox test is apposite as this is the test "which in essence seeks to distinguish automatically unfair dismissals from those that are not automatically unfair."36 He supported the use of this test as it had been accepted and applied by the LAC in several cases in the context of section 187(1). Therefore, he found no reason why it could not equally apply in the context of a section 187(1)(c) dismissal.37

The judgment by Majiedt J (hereinafter referred to as the second judgment) relied on the so-called conventional method of evaluating evidence, which he held was followed in Algorax.38 The Algorax judgment was appreciated, as it specifically dealt with section 187(1)(c) and not with one of the other listed automatically unfair dismissals. Majiedt J contended that in addressing section 187(1)(c), Algorax did not follow Afrox.39

Majiedt J rejected the Afrox test, as it emanated from delictual and criminal law and was seen to be imported into the arena of labour law without any basis.40 He explained that:

in delict, therefore, causation entails asking whether there is a sufficiently close causal connection between the act or omission in question and the harm caused. But, on a plain reading of section 187(1)(c), there is nothing which suggests, either directly or impliedly, even on a remote basis, the application of a causation enquiry in interpreting the section.41

He emphasised that the legal concept of causation is technical and is fraught with difficulties.42 In respect of factual causation he supported the sentiments expressed in Lee v Minister of Correctional Services, where it was held that the substitution exercise in applying the but-for test is troublesome due to its inflexibility.43 In respect of legal causation he made reference to the challenges in applying the criteria used to determine legal causation as discussed in De Klerk v Minister of Police. Notably, the fact that public policy has a role to play and that considerations of public policy

must be infused with constitutional values.44 Majiedt J summed up his view by stating that "the causation test does not seem to be practical in the context of section 187(1)(c)."45

Majiedt J stressed that what section 187(1)(c) demands is simply for one to determine whether the reason for the dismissal is a refusal by employees to accept a demand in respect of a matter of mutual interest between them and their employer. This is established by applying the rules applicable to the evaluation of evidence. Essentially, the reasons advanced by the employer to justify the decision to dismiss must be evaluated to determine whether they sufficiently support the decision to dismiss.46 He held that where there are two conflicting, irreconcilable versions before a court they must apply the approach laid down in Stellenbosch Farmers Winery.47 Here, one reaches a conclusion on the disputed issues by making findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.48

The second judgment highlighted the case of Kroukam v SA Airlink (Pty) Ltd 2005 26 ILJ 2153 (LAC) (hereafter Kroukam) and its adoption of a similar approach to that in Algorax.49 Majiedt J explained that Zondo J, writing for the minority in Kroukam,50 made no reference to a causation test but instead conducted a traditional factual inquiry.51 Davis AJA, who wrote for the majority in Kroukam, was said to similarly have applied the conventional approach to the evaluation of evidence, despite incorrectly referring with approval to the test set out in Afrox.52 While Majiedt J acknowledged that the judgment of Afrox was followed by the LAC in addressing other forms of automatically unfair dismissals, he was of the view that these judgments were wrongly decided.53

Majiedt J supported the approach followed by the Labour Court (LC) in National Union of Metalworkers of SA obo Members v Aveng Trident Steel (A Division of Aveng Africa) (Pty) Ltd 2018 39 ILJ 1625 (LC) (hereafter Aveng LC).54 He applauded the court for making extensive reference to the evidence before it,55 which he found not to be the approach followed by the LAC. The LAC, so he stated, did not refer to the evidence but merely followed Afrox.56

The judgment written by Jafta J (hereinafter referred to as the third judgment), argued that the causation test defies the language of section 187(1)(c).57 He discussed the causation test as it applies in the law of delict, notably making a distinction between wrongful conduct and the reason or motive for the harm.58 The point that he sought to make was that the application of the causation test would lead to an "absurdity" as "it would mean that by their refusal, the employees had caused their own dismissal."59 The absurdity seemingly arises because in a delict one assesses whether the wrongful conduct of the defendant caused the harm suffered by the plaintiff. In the context of section 187(1)(c), the harm is the dismissal. Therefore, one is essentially assessing whether the harm was caused by the actions of the same party.

To contextualise these two approaches, a discussion of both Afrox and Algorax is required.

3 The causation test

The causation test first arose in Afrox. It was applied to determine the true reason for dismissals, not in the context of section 187(1)(c), but in respect of section 187(1)(a).60 Here, the employees contended that they were dismissed for their participation in a protected strike, which constitutes an automatically unfair dismissal. Opposingly, the employer argued that the

employees were dismissed for operational requirements, as permitted in terms of the LRA.61

The court, which was faced with these two possible reasons for the dismissal, had to determine what the actual reason was. Were the employees dismissed for their participation in or support of a protected strike or were they dismissed for operational requirements?62

The court stated that the determination of the reason for the dismissal was essentially one of causation. In other words, the question to be asked to establish the reason for the dismissal was what was the cause of the dismissal? The court explained that there are two stages to determining causation; the first is factual causation and the second is legal causation. Factual causation enquires into whether participation in or support of the protected strike was a sine qua non (or prerequisite) for the dismissal? In other words, would the dismissal have occurred if there had been no participation or support of the strike? If the answer was yes, the dismissal would not be automatically unfair. If the answer was no, this did not lead to an immediate conclusion that the dismissal was automatically unfair. One must move onto the next stage, which is determining legal causation. Here, one is concerned with establishing whether participation or support of the strike was the "main" or "dominant", or "proximate", or "most likely" cause of the dismissal. The court emphasised that the enquiry into the reason for the dismissal was an objective one in which the employer's motive for the dismissal was simply one of a number of factors to be taken into account.63

The court considered the facts of the case and concluded that while participation in the strike was the factual cause of the dismissal, it was not the legal cause. Although the continued participation in the strike contributed to the decision to dismiss, it was not the main, or proximate, or dominant cause for the dismissal. The dominant cause was the employer's operational requirements.64

The causation test was followed in subsequent automatically unfair dismissal cases. However, none of these dealt with an alleged automatically unfair dismissal in terms of section 187(1)(c).

In Kroukam the court had to decide whether the true reason for dismissal was the active role played by the employee in his position as chairman of a trade union, which would amount to a violation of section 187(1)(d) of the LRA.65 Alternatively, whether the employee was dismissed for misconduct relating to gross insubordination and being a disruptive influence to the orderly operation of the respondent,66 which would constitute a permissible reason for dismissal. The court explained that the dispute concerned the application of the causation test, which required the employer to produce evidence to illustrate that the reason for the dismissal was not one that fell within the prohibitions of section 187(1).67 After a holistic consideration of the evidence, the court concluded that the dominant cause of the appellant's dismissal was his union activities and not misconduct.68

The court in Van der Velde v Business & Design Software (Pty) Ltd 2006 10 BLLR 1004 (LC) (hereafter Van Der Velde) assessed whether the dismissal was an automatically unfair dismissal in terms of section 187(1)(g)69 or whether it was a dismissal for operational requirements.70 Van Niekerk AJ (as he then was) prescribed to the causation test, stating that:

when the employer relies on a fair reason related to its operational requirements (or indeed any other potentially fair reason) as the true reason for dismissal, the Court must apply the two-stage test of factual and legal causation to determine whether the true reason for dismissal was the transfer itself.71

By applying the causation test to the evidence presented, it was found that the respondents failed to discharge the onus of establishing that the applicant was dismissed for a reason other than an automatically unfair reason in terms of section187(1)(g).72

Long v Prism Holdings Ltd 2012 33 ILJ 1402 (LAC) (hereafter Long) contended with the same issues as in Van der Velde, namely whether the

dismissal was for operational requirements or due to the transfer of the business or a reason related thereto.73 The court made reference to the test set out in Afrox and came to the conclusion that based on all of the evidence presented, the applicant failed to show that the probable cause of his dismissal fell within the provisions of section 187(1)(g) of the LRA. The court found that the respondent's evidence that the applicant was dismissed for operational reasons was more probable.74

In TFD Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC) (hereafter Faris) the LAC had to determine whether the true reason for the dismissal was incapacity as argued by the employer, as opposed to an automatically unfair dismissal for discriminatory reasons prohibited in section 187(1)(f).75 Relying on the Afrox test it was concluded that the dominant reason for the respondent’s dismissal was her religion and not her refusal to do the required work on a Saturday.76

The causation test has become recognised as the test to be followed when the reason for the dismissal is in dispute. This occurs when the employee alleges that the dismissal was for an impermissible reason, while the employer claims that it was due to misconduct, incapacity or operational requirements.77

4 Approach followed in Algorax

In Algorax the court had to deal specifically with an alleged section 187(1)(c) automatically unfair dismissal. Here, employees were dismissed following their refusal to accept a proposal to change the shift system from working a straight-day shift to a rotating shift in the packing department.78

The packing department of the employer initially operated on two shifts, a night shift and a day shift.79 In order to avoid retrenchments when the bulk sales department was restructured and the cleaning department was closed down, the employees from these departments were transferred to the day shift in the packing department. This resulted in the day shift being overstaffed and the night shift being understaffed.80 There were also quite

a few employees on the night shift who were contract labourers working in vacant permanent positions because it was difficult to get permanent employees who were prepared to work the night shift.81

For the respondent to remain competitive, it had to cut down on costs, which included cutting down on the number of its employees. It was decided that no retrenchments should occur.82 However, the use of contract labourers had to be done away with as there was an excess number of permanent employees.83 Therefore, the employer argued that the employees' refusal to work the rotating shift created genuine operational difficulties.84

As was the case in Afrox, the court was faced with two possible reasons for the dismissal - an impermissible reason on the one hand, and a permissible reason on the other. It is important to note that this case was decided prior to the amendment to section 187(1)(c). At that time, section 187(1)(c) was worded as follows: a dismissal is automatically unfair if the reason for the dismissal is to "compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee." As discussed below, the approach followed in Algorax would not be apt, based on the current wording of the section.

Zondo J enquired into the purpose of the dismissal.85 Based on an evaluation of the evidence, he found that the purpose was to compel the employees to agree to the employer's demand.86 This conclusion was reached because the employer's intention was not for the dismissals to be final, as they were willing to take the employees back if they acceded to the demand. Therefore, the dismissal was used as a tactic to put pressure on the employees to accept the proposal of a rotating shift.87

Afrox and Algorax differs because in Afrox the key factor in determining whether the dismissal was automatically unfair was ascertaining the reason for the dismissal. Was the true or main reason for the dismissal the

employees’ participation in or support of the protected strike or was it the operational needs of the employer? In Algorax the key factor in determining whether the dismissal was automatically unfair was the employer's intention. Was the purpose or intention of the dismissal to compel the employees to accept the demand?

In Algorax, while the court considered the reason for the dismissal, which was found to be the employees' refusal to work the rotating shifts, the reason did not play a role in determining whether an automatically unfair dismissal had been effected.88 It was considered in determining the employees’ alternate claim, namely if the dismissal was not automatically unfair, was it unfair in that there was no fair reason for it.89

It is clear that this distinction in approach between purpose or intention and reason or cause emerges only because of the manner in which section 187(1)(c) was worded at the time. Based on the wording of section 187(1)(c) Zondo J correctly directed his enquiry to determining whether the employer's intention in dismissing its employees was to compel them to accept the demand. This was based on the approach followed in National Union of Metalworkers of South Africa v Fry's Metals (Pty) Ltd 2005 26 ILJ 689 (SCA).

However, irrespective of whether a court enquires into the purpose of a dismissal or the reason for a dismissal, a proper evaluation of the evidence is required.

5 Analysis of Afrox and Algorax: The correct approach for establishing the true reason for an alleged section 187(1)(c) dismissal

5.1 Did Algorax discard Afrox and utilise a different approach?

The second judgment places a great deal of emphasis on the Algorax approach in determining whether a dismissal constitutes an automatically unfair dismissal in terms of section 187(1)(c). Having discussed Algorax, it is apparent that the case does not discard the test set out in Afrox. The test in Afrox was not relevant to the enquiry conducted by Zondo J. Based on the wording of section 187(1)(c), the determining factor was not to ascertain what the real reason for the dismissal was, but rather what the purpose was. As explained by Zondo J, there is a clear distinction between an enquiry into

purpose and an enquiry into reason.90 This is buttressed by the explanation in Afrox that the employer's motive is one of a number of factors to be taken into account in determining the true reason for the dismissal.91

Considering the amended section 187(1)(c), the purpose of the dismissal is no longer the primary consideration. As stated by Grogan, one identifies an automatically unfair dismissal by looking at the reasons why the employer dismissed.92 The CC unanimously agreed that when faced with two opposing grounds of dismissal in a section 187(1)(c) claim, the court must embark on an enquiry to establish the true reason for the dismissal.93 Majiedt J accepted that while none of the other judgments that applied the Afrox test dealt with the interpretation of section 187(1)(c), the enquiry remained the same, which is establishing the true reason for the dismissal.94

Therefore, the second judgment misconstrued or confounded the enquiry undertaken in Algorax to determine whether a section 187(1)(c) dismissal ocurred.95 Zondo J did not make this determination by looking at the reason for the dismissal. He made the determination by looking at the purpose of the dismissal. Therefore, it cannot be said that Algorax followed a different approach to Afrox, as the enquiry in Algorax was different from the enquiry in Afrox. Due to the nature of the Afrox test as explained earlier, Algorax would probably have followed Afrox in determining the real reason for the dismissal, if section 187(1)(c) had been worded as it currently is.

5.2 Was Algorax followed in subsequent judgments?

The assertions of the second judgment that Kroukam followed Algorax must be rejected. Davis AJA specifically referred to the application of the causation test set out in Afrox.96 This could not have been an error on his part, as he expressly states that the court is required to determine from the evidence led what the "dominant" or most likely cause of the dismissal was.97 While Zondo J did not specifically refer to the Afrox test, as Davis

AJA did, a consideration of all the circumstances and evidence led him to the conclusion that the principal or dominant reason for the dismissal was the appellant's participation in union activities.98 Ascertaining the dominant or main reason for the dismissal, equates to following part of the causation test set out in Afrox. Furthermore, this case was concerned with determining the true reason for the dismissal, which was not the case in Algorax. Therefore, it cannot be said that Kroukam followed Algorax. Kroukam in fact endorsed the Afrox test.

5.3 Does the wording of section 187(1)(c) militate against the use of Afrox?

The second and third judgments express a view that considering the wording of section 187(1)(c), the use of Afrox is inappropriate or without any basis.99 As correctly contended in the first judgment, section 187(1) states that a dismissal will be automatically unfair only if the employer's reason for dismissing is based on one of the reasons listed in section 187(1). It is therefore apt to consider what that reason is. Where there is more than one possible reason, which has been prevalent in all the cases under discussion, it is the main or dominant reason that must be established. This brings us to the Afrox test.

The concerns raised in the third judgment that an application of the causation test would lead to an absurdity is rejected. It is accepted that in the law of delict, factual causation is used to determine whether the harm suffered by the plaintiff resulted from or was caused by the wrongful conduct of the defendant. With this reference in mind, the third judgment looked at it from the point of view that applying the causation test to section 187(1)(c) means assessing whether the dismissal of the employees was caused by the actions of the employees in refusing to accept the demand. Therefore, this would not be in line with the causation test applied in the law of delict.

Firstly, labour law is:

a complex and intertwined body of law drawn from a number of diverse legal sources. Contract, delict, criminal law, administrative law, company law and international law are all areas of law with which labour law to a greater or lesser degree interacts.100

Therefore, there are principles that emanate from other sources of law that are applied in the field of labour law.101 Secondly, these principles do not always take on the exact form that they have in the original source of law.102

While the causation test may not apply precisely as it would in the law of delict, the question to be asked is whether this test works in labour law. Does it make it easier to determine whether the true reason for the dismissal was the employees’ refusal to accept the employer's demand? If it does, why would it be improper to utilise it?

As indicated earlier, it is not contested that in such disputes the true reason for the dismissal must be determined. Legal causation is about determining what the main or dominant reason for the dismissal is, when faced with more than one possible reason for dismissal. This is an essential test that must be performed.

Factual causation, on the other hand, is about asking whether there would have been a dismissal if it were not for the employee's refusal to accept the employer's demand. If no link can be shown between the dismissal and the refusal to accept the demand, no automatically unfair dismissal has been committed. This enquiry comes in before one looks at the main or dominant reason for the dismissal, as establishing the main or dominant reason would be a non-issue if there were no link between the dismissal and the automatically unfair reason. Therefore, this part of the enquiry plays an important role.

Davis AJA in Kroukam explained that in an alleged section 187(1) dismissal, the employee has an evidential burden to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. Thereafter, the responsibility shifts to the employer to produce evidence to show that the reason for the dismissal was not an impermissible reason envisaged in section 187.103 The court subsequently

considers the evidence led to determine the dominant or most likely cause of the dismissal.104 This approach was endorsed by Aveng LC105 and was cited with approval in the second judgment.106 There is undoubtedly synergy between the burden of proof as set out in Kroukam and the causation test set out in Afrox.

5.4 Does following Afrox imply that evidence is not evaluated?

The second judgment seems to be of the view that if one uses Afrox then there is no evaluation or no proper evaluation of evidence.107 This cannot be correct. The first judgment explains in no uncertain terms that the determination of the reason for a dismissal is a question of fact. Where there is more than one possible reason for the dismissal, the dominant reason must be established through an examination of the facts.108 The facts cannot be established other than through the leading of evidence and the subsequent evaluation of that evidence.

Even though the second judgment contends that the LAC did not consider the evidence, Majiedt J expressly stated that the LAC "after considering all the facts" found that the dominant reason for dismissal was the operational requirements of the employer.109 In the other cases that followed Afrox, there was due consideration of the evidence led.110

It is trite that a court cannot arrive at a decision about what the main or dominant reason for a dismissal is without having due regard for the evidence presented. This applies whether the enquiry is called the determination of legal causation or whether it is simply termed the determination of the true reason for dismissal. This will require the court to look at the credibility and reliability of witnesses, as well as the probabilities. Therefore, the application of the causation test does not eliminate a proper evaluation of the evidence.

6 Conclusion

The approach followed by the first judgment, which endorsed the causation test set out in Afrox, is found to be correct. It is commonplace that the determination of whether an automatically unfair dismissal in terms of section 187(1)(c) has been committed requires one to establish whether the employees' refusal to accept the employers demand was the true reason for the dismissal. The causation test is directed at establishing just this. Once a link has been shown between the dismissal and the impermissible reason, the test requires that the evidence be evaluated to establish what is the main or dominant reason for the dismissal.

None of the reasons advanced by the second and third judgments for rejecting the test warrants its displacement. Ultimately, the assistance provided by the causation test in this area of labour law outweighs the reasons for its rejection.

The findings from this analysis should bring a level of certainty to this area of the law by convincing courts of the continued role, importance and application of the Afrox test. This test plays an important role in rooting out unscrupulous dismissals under the guise of operational requirements. The application of this test in all cases of this nature will aid the achievement of a primary objective of the LRA, which is rooting out unfair dismissals.

Bibliography

Literature

Burns 1991 SAPL

Burns Y "Subordinate Legislation and the Audi Alteram Partem Rule" 1991 SAPL 282-285

Cohen 2007 ILJ

Cohen T "Onus of Proof in Automatically Unfair Dismissals - Janda v First National Bank (2006) 27 ILJ 2627 (LC)" 2007 ILJ 1465-1471

Grogan Dismissal

Grogan J Dismissal 3rd ed (Juta Cape Town 2019)

Newaj 2020 ILJ

Newaj K "Can Employees be Fairly Dismissed for Refusing to Accept a Demand? A Discussion of National Union of Metalworkers of SA & Others

v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) & Another (2019) 40 ILJ 2024 (LAC)" 2020 ILJ 834-845

Newaj and Van Eck 2016 PELJ

Newaj K and Van Eck BPS "Automatically Unfair and Operational Requirement Dismissals: Making Sense of the 2014 Amendments " 2016 PELJ 1-30

Olivier 1996 ILJ

Olivier M "Legal Constraints on the Termination of Fixed-Term Contracts of Employment: An Enquiry into Recent Developments" 1996 ILJ 1001-1041

Van Niekerk and Smit Law@work

Van Niekerk A and Smit N Law@work 5th ed (LexisNexis Durban 2019)

Case law

Administrator of the Transvaal v Traub 1989 10 ILJ 823 (A)

Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC)

Kroukam v SA Airlink (Pty) Ltd 2005 26 ILJ 2153 (LAC)

Long v Prism Holdings Ltd 2012 33 ILJ 1402 (LAC)

Mdwaba v Nonxuba 2018 ZAGPJHC 44 (9 March 2018)

National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC)

National Union of Metalworkers of SA v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2019 40 ILJ 2024 (LAC)

National Union of Metalworkers of SA obo Members v Aveng Trident Steel (A Division of Aveng Africa) (Pty) Ltd 2018 39 ILJ 1625 (LC)

National Union of Metalworkers of South Africa v Fry's Metals (Pty) Ltd 2005 26 ILJ 689 (SCA)

SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC)

State Information Technology Agency (Pty) Ltd v Sekgobela 2012 33 ILJ 2374 (LAC)

TFD Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC)

Van der Velde v Business & Design Software (Pty) Ltd 2006 10 BLLR 1004 (LC)

Legislation

Labour Relations Act 66 of 1995

List of Abbreviations