South African Labour Relations

Wits Business School |

The Power of an Employer to Dismiss

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Strategic Industrial Relations |

Rendani Tshivhase

10/21/2010

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Table of Contents

The power balance 3

The Legislation 3

The Dismissal Attributes 3

Examples of cases 4

The South African National Defense Force vs. South African Defense Force Members 4

Jacob Maroga vs. Eskom 4

References 5

The power balance

The power of an employer to dismiss is a ‘hot’ topic in the South African context, which is due to the fact that the labour laws in this country are perceived to be towards protecting the employees. This is true as the laws are aimed at protecting the employees. One then can argue that an employer is if not more equally important, given that they offer jobs to the very same employees and add more economically and socially in the country. Shouldn’t there be a balance of power between the employees and the employer? This argument is resolved by looking at attributes beyond the legal framework. The employer has the advantage of having access to resources such monetary and skilful labour relations advisors. The balance lies in the resources that the employer has given the scope of the labour laws which those resources can play part to the advantage of the employer.

The Legislation

The termination of employment is employs the application of two pieces of legislation. These are The Labour Relations Act (No. 66 of 1995) and The Basic Conditions of Employment Act (No. 75 of 1997). Section 185 of The Labour Relations Act (No. 66 of 1995) applies to all employers and employees in both the private and the public sector with the exception of members of The South African Defence Force and The Secret Service Agencies (Section 2 of LRA). It is also critical to emphasise the fact that it is a constitutional right not to be unfairly dismissed given effect by Chapter VIII of The Labour Relations Act (No. 66 of 1995) (Bendix 2007)

The Dismissal Attributes

An employer has the power...