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CASE LAW UPDATE. T. QOTOYI. The meaning of dismissal –s186(1)(b). Does section 186(1)(b) of the LRA give rise to a reasonable expectation of permanent appointment? University of Pretoria v CCMA [2012] 2 BLLR 164 (LAC) - Employee employed on a series of fixed-term contracts

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The meaning of dismissal –s186(1)(b)

Does section 186(1)(b) of the LRA give rise to a reasonable expectation of permanent appointment?

University of Pretoria v CCMA [2012] 2 BLLR 164 (LAC)

- Employee employed on a series of fixed-term contracts

for three years

- Unsuccessfully applied for a permanent position

- Employer offered her a further fixed-term contract which

she declined


The meaning of dismissal –s186(1)(b)

  • -
  • Employee lodging an unfair dismissal claim on the ground that she should have been appointed permanently
  • According to the Labour Appeal Court a dismissal as contemplated in section 186(1)(b) will only arise if the following two requirements are present:
  • A reasonable expectation on the part of the employee that a fixed-term contract on the same or similar terms will be renewed
  • A failure by the employer to renew the contract on the same terms or a failure to renew it at all
  • Therefore, the section does not give rise to an expectation of permanent
  • appointment
  • The Dirks v The University of South Africa [1999] 20 ILJ 1227 (LC) and McInnes v Technicon of Natal [2000] 21 ILJ 1138 (LC) debate finally laid to rest

Constructive dismissal

  • -
  • Asra Wine Estate & Hotel (Pty) Ltd v Van Rooyen & Others [2012] 33 ILJ 363 (LC)
  • In determining whether a dismissal constitutes constructive dismissal the following requirements must be met:
  • The employee terminated the contract
  • Continued employment had become intolerable for the employee
  • The employer must have made continued employment intolerable
  • Employee elected to resign rather than to attend a disciplinary
  • hearing
  • - Employee not constructively dismissed

Existence of employment relationship

  • Mokhethi v General Public Service Sectoral Bargaining Council & Others [2012] 33 ILJ 1215 (LC)
  • - An alleged offer of employment made following false
  • submission to employer
  • Peremptory processes prescribed by the Public Service Act
  • (Proc 103 of 1994) not followed
  • Applicant reported for work, given uniform appointment
  • card
  • The court held that there was no contract and consequently
  • no employment relationship

Dismissal for misconduct

  • Transnet Rail Engineering Ltd v Transnet Bargaining Council & Others [2012] 33 ILJ 1481 (LC)
  • Employee dismissed for unauthorised possession of
  • employer’s property
  • Employee raising defence of kleptomania at arbitration
  • Arbitrator holding that like alcoholism, kleptomania, should
  • be treated as a form of incapacity
  • - Dismissal found to be unfair
  • Award set aside and dismissal found to be fair by the
  • Labour Court because there was no evidence that the
  • employee was indeed a kleptomaniac


  • Mphigalale v Safety & Security Sectoral Bargaining Council & Others [2012] 33 ILJ 1464 (LC)
  • - Employee found guilty of corruption and dismissed
  • Previously two employees found guilty of corruption
  • given sanctions short of dismissal
  • - Previous decisions made in error
  • - Employer not required to repeat decisions made in error
  • - Due to the seriousness of misconduct dismissal held to
  • be fair

Deemed dismissal-s14 of Employment of Educators Act

  • Mogola v Head of The Department of Education [2012] 6 BLLR 584 (LC)
  • Discharge of an educator under section 14(1) does not
  • constitute dismissal as defined in LRA
  • Employees discharged for being absent from work for more
  • than 14 days
  • However, an employer has to consider submissions made
  • by an employee in terms of section 14(2)
  • - Employer failed to consider the submissions
  • - Discharge set aside and employees reinstated

Precautionary suspension

  • Lebu v Maquassi Hills Local Municipality [2012]4 BLLR 411 (LC)
  • The employee, a municipal manager, suspended pending a
  • disciplinary hearing
  • Suspension not in compliance with the Local Government
  • Regulations for Senior Managers,2010
  • Employee not given an opportunity to make representations
  • as per the Regulations
  • The court warns against using precautionary suspension
  • arbitrarily

[14] “Suspension is a measure that has serious

consequences for an employee, and is not a

measure that should be resorted to lightly.

There appears to be a tendency, especially in the public sector, where suspension is applied as a measure of first resort and almost automatically imposed where any form of misconduct is alleged.”

- Suspension set aside and reinstatement ordered



  • Imatu obo Verster v Umhlathuze Municipality (D 644/09)
  • Employee appointed in an acting capacity on two distinct periods
  • Not paid an acting allowance for the first period but paid for the
  • second period
  • CCMA aligning itself with Hospersa v Northern Cape Provincial
  • Administration [2000] 21 ILJ 1066 (LC) held that it lacked jurisdiction
  • as the employee could not prove contractual entitlement to the acting
  • allowance
  • The Labour Court held that where an employer regularly exercises a
  • discretion to provide a non-contractual benefit, such a dispute may be
  • arbitrated by the CCMA
  • - An acting allowance can be a benefit even if there is no contractual
  • entitlement
  • - However, LAC decision in Hospersa still stands

Polygraph test

  • Sedibeng District Municipality v South African Local Governing Bargaining Council and Others (JR 1559/09) [2012]
  • Employees not promoted after failing to pass the polygraph
  • test
  • Polygraph test results used as a key criterion for
  • promotion
  • No independent evidence showing that the employees
  • were previously implicated in some wrongdoing, or
  • corruption
  • Exclusive reliance on the polygraph test results to eliminate
  • the employees from promotion held to be unfair


  • Department of Correctional Services & another v POPCRU
  • & others[2012] 2 BLLR 110 (LAC)
  • Male prison employees dismissed for refusing on cultural
  • and religious grounds to remove dreadlocks
  • - Female employees not required to remove dreadlocks
  • Employer failed to show the rational connection between
  • the instruction and purpose
  • Dismissal constituting direct discrimination on the grounds
  • of gender, religion and culture and thus automatically unfair

Res judicata plea

  • Gauteng Shared Services Centre v Ditsamai[2012] 4 BLLR 328 (LAC)
  • Employee dismissed after lodging a grievance relating to non-
  • promotion to a permanent position
  • - Dismissal unfair and employee awarded compensation
  • Employee further referring a dispute on the grounds that he had been
  • overlooked for the permanent position because of unfair discrimination
  • Employer contending that the matter was res judicata
  • Court stressing that the requirements for a successful plea of res
  • judicataare that the same dispute between the same parties involving
  • the same claim and the same issue of law must already have been
  • adjudicated by a competent court
  • - Since this was not the case there was no merit in the employer’s res
  • judicataplea


  • Equity Aviation Services (Pty) Ltd v SATAWU & Others [2012] 3 BLLR 245 (SCA)
  • Non-union members dismissed for unauthorised
  • absence from work after joining a protected strike called
  • by the majority union
  • Non-union members required to deliver separate strike
  • notices to the employer
  • - Failure to do so rendered their strike unprotected
  • - Dismissal not automatically unfair

BMW SA (Pty)Ltd v National Union of Metalworkers of SA obo members [2012] 33 ILJ 140 (LAC)

  • Union and the employer concluding a collective
  • agreement which required the parties to make use of
  • facilitation in the event of a dispute before embarking on
  • strike
  • Only once facilitation had failed would the union be
  • entitled to strike
  • Parties not entitled to either follow the agreed procedure
  • or the statutory procedure in section 64(1) of the LRA

Passenger Rail Agency of South Africa v SATAWU

  • (J 543/12)
  • Union demanding that two managerial staff
  • members of PRASA be suspended
  • Union also demanding that a forensic investigation
  • be commissioned
  • Employer arguing that the first demand was unlawful
  • and that it had already complied with the second
  • demand
  • Strike declared unlawful and unprotected