A heinous crime in the workplace

‘Automatically unfair dismissals’ are worse than unfair dismissals

THE LABOUR Relations Act makes it perfectly clear in section 187 (1) (f) that a dismissal is automatically unfair if the reason for the dismissal is “that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including but not limited to… gender, sex (and) sexual orientation”.

Automatically unfair dismissals are the workplace equivalent of a heinous crime; very unfair dismissals if you like.

They are considered to be so deplorable that they have a maximum compensation threshold of 24 months’ remuneration versus 12 months’ compensation for ordinary unfair dismissals.

In Quinton Atkins v Datacentrix (Pty) Ltd (JS02/07), the Labour Court was called upon to review a dismissal by an employer of an employee who had informed the employer that he is MD of Tony Healy & Associates, Labour Law no longer required his services.

Fortunately for the employee, he had not resigned from his previous place of work at the time, and therefore continued his employment with that employer.

However, he did refer his dismissal on grounds of his planned sex change to the Commission for Conciliation, Mediation and Arbitration and ultimately the Labour Court on the grounds that, inter alia, his dismissal had been automatically unfair this omission constituted a serious case of misrepresentation which amounted to dishonesty.

The court held that the employer had not defended the case on the basis that it had discriminated against the employee fairly, but rather, that the employee had a duty to disclose his intentions to undergo a gender reclassification process during his interview.

The court concluded that the only inference that could be drawn from the facts was that the employer would not have employed the employee if he had disclosed his true intentions during the interview process.

Continuing, the court held that: “There was simply no legal duty for the applicant to have disclosed what his intentions were. It was simply none of the respondent’s business that he wanted to undergo the process.”

The employee was awarded compensation equal to five months’ remuneration as he had seamlessly continued employment with his previous employer.

Tony Healy can be followed on Twitter at @tony_healy or see www.tonyhealy.co.za.