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DISMISSALS DUE TO REFUSAL BY EMPLOYEES TO ACCEPT A MUTUAL INTEREST DEMAND
Section 187(1)(c) of the LRA renders it automatically unfair to dismiss employees for refusing to accept the employer’s demand on a matter of mutual interest. Does this section apply to the situation where an individual employee has been dismissed for refusing to accept the employer’s demand that, for example, the employee accepts a pay reduction or other change in his normal terms of employment that the parties have been negotiating. Or does 187(1)(c) only apply when employers are negotiating with a union on behalf of its members?No, 187(1) (c) does not apply to the individual in this situation. The purpose of the automatically unfair dismissal provisions is to deter employers from dismissing employees for exercising their fundamental constitutional rights. The rights to freedom of association and to strike are relevant examples in this case study. These particular (collective) rights can only be protected if they are exercised by a registered representative union – and if the proper procedures were followed. These were the factors which existed in the Avenge case.
They would not exist in the case of an individual who is not represented by a registered union and is not party to a collective bargaining process. He or she would not be exercising the right to freedom of association or to strike. It follows that his or her dismissal for refusing to accept a change in conditions of employment would not be covered by s187(1)(c). It would instead be covered either by Section 185 (the right not to be unfairly dismissed) or by Section 189 (the right not to be unfairly dismissed for operational reasons).
Although the decision in Abrahams v Drake & Scull Facilities Management (SA) (Pty) Ltd (LC1105/10 dated 11 November 2011) relates to a unilateral change to terms and conditions of employment, it suggests that an employer can either retrench an employee in terms of section 189 or lock out an individual employee if the employee refuses to accept a demand on a matter of mutual interest. Therefore I think that Section 187(1)(c) would apply to an individual employee.
Ingrid DevilliersIn essence I think the case National Union of Metal Workers of South Africa and Others vs Aveng Trident Steel and Another, CCT 178/19 is a most appropriate case. This judgement was handed down in the Constitutional Court on the 27th October 2020.
In essence Aveng had advised some of their staff members that they wished to facilitate alternatives to retrenchment before embarking on an actual retrenchment. The Union said that the alternative offer which was less than the current terms and conditions of employment was unfair and was the true reason for the actual retrenchment. The Company could show that there was actual operational reasons to make the lesser proposals. If the staff and the Union did not accept the lesser proposals they were going to continue with the retrenchment process. Previously this had been illegal but this constitutional case now sets the law very clearly. That is, the reduction of pay refusal can lead to a retrenchment. However, in order to win, the employer has to prove that the pay reduction as being essential in view of operational requirements.
MICHAEL BAGRAIM
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