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If I were the CCMA arbitrator I would uphold this dismissal. Firstly, workers should not have the right to make such a demand. Secondly, the workers did not make it clear as to what action they planned to take if their demand was not met. As they may have been intending to go on strike, and as strikes are harmful to the economy, they should have no right to make such threats. The employer was therefore right to fire the workers.
It is widely argued that trainees are not employees, but this is a contentious issue. It is argued it is argued that trainees should not have the protection of the labour law dispensation because they are linked to the business or organisation via their need to develop skills and not for purposes of doing work. While this is a rational argument the statutes themselves indicate differently. For example, included in the definition of ‘employee’ in the LRA is the phrase: “any other person who in any manner assists in carrying on or conducting the business of an employer.” This definition includes all trainees who provide work for the business. And section 198(4)(c) of the LRA says that a student or recent graduate who is employed for the purpose of being trained or gaining experience may be employed on the basis of a fixed term contract for longer than 3 months. This clearly implies that the trainee is an employee whose rights are provided for by the LRA. As a result, any employer wishing to argue that a trainee is not an
I agree with Ingrid that reinstatement could be an option because this is not necessarily a constructive dismissal. However, would it be right for the unfairly dismissed employee not to be reinstated merely because the employer brought evidence to show that reinstatement would be impractical? Surely the intention of section 197 is for the employee to be employed by the new employer despite the impracticalities of doing so?