THE LEGALITY OF THE AUTOMATIC TERMINATION OF CONTRACTS OF EMPLOYMENT

The Labour Relations Act (66 of 1995) (LRA) protects employees against unfair dismissal. In terms of section 186(1)(a) dismissal means that “an employer terminated a contract of employment with or without notice”. In order to fall within the ambit of this provision and benefit from the protections afforded by the LRA, an employee must prove that an overt act on the part of the employer has resulted in the termination of the employment contract (Ouwehand v Hout Bay Fishing Industries 2004 25 ILJ 731 (LC)). The onus then shifts to the employer to prove that the dismissal is both substantively and procedurally fair, failing which the employee will be entitled to the remedies afforded by section 193 of the LRA.


Introduction
The Labour Relations Act (66 of 1995) (LRA) protects employees against unfair dismissal. In terms of section 186(1)(a) dismissal means that "an employer terminated a contract of employment with or without notice". In order to fall within the ambit of this provision and benefit from the protections afforded by the LRA, an employee must prove that an overt act on the part of the employer has resulted in the termination of the employment contract (Ouwehand v Hout Bay Fishing Industries 2004 25 ILJ 731 (LC)). The onus then shifts to the employer to prove that the dismissal is both substantively and procedurally fair, failing which the employee will be entitled to the remedies afforded by section 193 of the LRA.
However, not every termination of an employment contract constitutes a dismissal and a number of scenarios exist where an employment contract terminates lawfully by operation of law. The termination of a fixed-term contract by effluxion of time, termination of the contract due to supervening impossibility of performance and the attainment of a contractually agreed or implied retirement age all give rise to the lawful termination of an employment contract. Similarly the statutory "deemed-dismissal" provisions of application to employees in the public sector provide for the automatic termination of employment contracts in circumstances that the employee is absent without authorisation for a designated period of time. The effect of such automatic termination is that the employment contract terminates by operation of law and not by means of an act of the employer, resulting in the dismissal provisions of the LRA being legitimately circumvented.
Labour-broking contracts typically include automatic termination clauses that provide for the automatic termination of employment contracts, between labour-brokers and their employees, when the broker's client no longer requires the services of such employees. Similarly employers have sought to rely upon grounds of supervening impossibility of performance in order to argue that an employment contract has automatically terminated in the instance of absconding and imprisoned employees. This article will be examining the legality of the automatic termination of employment contracts in these contexts and the impact on employees' rights to protection against unfair dismissal.

The automatic termination of labour-brokers' employees
Section 198 of the LRA defines a temporary employment service (labourbroker) as any person, who, for reward, procures for or provides to a client other persons who render services or perform work for the client and who are remunerated by the temporary employment service. Section 198(2) stipulates that the temporary employment service is the employer of the person whose services have been procured for a client and limits the client's liability to joint and several liability with the employer for a contravention of the terms and conditions of a collective agreement, arbitration award, sectoral determination or provision of the BCEA (this working arrangement is endorsed by International Labour Organisation (ILO) Recommendation 197 of 2006).
While it has been acknowledged that temporary employment services make a worthy contribution to the South African economy (in the "Regulatory Impact Assessment of Selected Provisions of the Labour Relations Amendment Bill, 2010; Basic Conditions of Employment Amendment Bill, 2010;Employment Equity Amendment Bill, 2010;and Employment Services Bill, 2010" conducted by Benjamin and Bhorat for the Department of Labour (September 2010) the authors cautioned that the outright ban of labour-broking arrangements will have dire negative effects on employment and job creation http://www.labour.gov.za/downloads/legislation/bills/pro posed-amendment-bills/FINAL_RIA_PAPER_13Sept2010.PDFA), a less commendable motivating factor for the engagement of labour-broking services is to circumvent the gamut of statutory rights and obligations that would typically arise in a standard employment relationship. Instead the contractual obligations of the labour-broker's clients are circumscribed by the commercial contract concluded and generally indemnify the client against any responsibility towards the broker's employees. To avoid allegations of unfair dismissal and unlawful termination labour-brokers typically include carefully constructed contractual provisions in employment contracts that provide for the automatic termination of such contracts in circumstances that the employer's contract with the client expires or the client no longer requires the services of the particular employee (in NUMSA v SA Five Engineering (Pty) Ltd 2007 28 ILJ 1290 (LC)).
In a number of recent decisions the Labour Courts have considered the legality of these provisions. In Sindane v Prestige Cleaning Services (2009 12 BLLR 1249 (LC) 1250) the court considered whether the applicant, formerly employed as a cleaner by the respondent in terms of a "fixed-term eventuality contract of employment" (Sindane v Prestige Cleaning Services supra 1250), had been dismissed within the meaning of the LRA. The employee had been terminated as a result of the client scaling down its contract with the employer brokers, by cancelling a contract in terms of which an extra cleaner had been provided to them. The contract stipulated that, upon termination of the broker's contract with the client to whom the employee rendered services, the employee's employment contract with the employer broker would automatically terminate. The court was satisfied that, in circumstances when an act of the employer is not the proximate cause of the termination of the employment contract, it does not constitute a dismissal.
In reaching its decision the court distinguished the finding of the Labour Court in SA Post Office Ltd v Mampeule (2009 8 BLLR 792 (LC)) which considered the impact of a provision in an employment contract that provided for the automatic termination of the contract upon the occurrence of an external event. In this matter the employee was appointed CEO of the employer in terms of a 5-year fixed-term contract and was also appointed as an executive director on the employer's board of directors. The employer's articles of association stipulated that the employee's appointment as executive director was an "inherent requirement" of the job and that, if the executive director ceased to hold office for any reason whatsoever including removal by the shareholders, his contract terminated automatically and simultaneously with the cessation of office. Following the employee's removal from the board of directors he was advised that his contract of employment had terminated automatically. The Labour Court considered an interlocutory application to determine whether such termination constituted a dismissal regulated by the LRA. The court held that any act by an employer that directly or indirectly results in the termination of a contract of employment constitutes a dismissal. As the employer had "terminated the respondent's contract of employment by severing the umbilical cord that ties the respondent's employment contract to his membership of the applicant's board of trustees" (SA Post Office Ltd v Mampeule supra 793) the act of severance constituted a dismissal. In considering the legitimacy of automatic termination clauses, the court held that such clauses are "impermissible in their truncation of the provisions of chapter 8 of the LRA and, possibly even, the concomitant constitutional right to fair labour practices ... Provisions of this sort, militating as they do against public policy by which statutory rights conferred on employees are for the benefit of all employees and not just an individual, are incapable of consensual validation between parties to a contract by way of waiver of the rights so conferred" (SA Post Office Ltd v Mampeule supra 803).
The court in Sindane distinguished the finding of the court in Mampeule on a number of grounds. In Mampeule the termination was based on the employer's decision to remove him from the board of directors following allegations of misconduct. In such circumstances, the court held, he ought to have been afforded an opportunity to contest the fairness of his termination. On the other hand, in Sindane, the court was satisfied that the applicant had not been dismissed as the termination of his employment contract was triggered by a third party and not by the employer. In reaching this decision the court relied upon the wording of section 186 of the LRA which defines dismissal as the termination of the contract of employment "by the employer". In finding that the contract terminated as a result of a specified event as opposed to an overt act on the part of the employer the court was satisfied that the termination did not fall within the ambit of section 186.
The Labour Appeal Court subsequently reconsidered on appeal the finding of the court in SA Post Office Ltd v Mampeule (2010 10 BLLR 1052 (LAC)) and upheld the finding of the court a quo albeit on a different basis. In reaching its decision the court relied upon section 5(2)(b) and 5(4) of the LRA. Section 5(2) provides that "no person may prevent an employee from exercising any right conferred by this Act." Section 5(4) provides further that "[a] provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or limits any provision of section 4, or this section, is invalid, unless the contractual provision is permitted by this Act." The court noted that the onus rested on the employer in such circumstances to establish that the automatic termination clause prevailed over the relevant provisions in the LRA. The court was satisfied that parties to an employment contract cannot contract out of the protection against unfair dismissal, whether by means of an automatic termination clause or otherwise, as the LRA is promulgated in the public interest and not only to cater for the interests of the individuals concerned (see also Chillibush v Johnston 2010 6 BLLR 607 (LC) in which the court held that it is not permissible in the labour-law context to allow an employer to negotiate contractually the terms of a dismissal in advance). The court was satisfied that section 5 trumped the contractual provision, as the employer had failed to offer a clear explanation as to why the automatic termination clause had been independently triggered and the only explicable motive appeared to be to circumvent the unfair dismissal provisions of the LRA.
Echoing this approach the Labour Court in Mahlamu v CCMA (2011 4 BLLR 381 (LC)) noted that the statutory protection against unfair dismissal is a fundamental component of the constitutional right to fair labour practices that serves to protect the vulnerable by infusing fairness into the contractual relationship, and that the LRA must be purposively construed to give effect to this. The court noted that, as the automatic termination provisions in the contract clearly falls within the section 5(2)(b) injunction, the key consideration is whether such provisions are permitted by the LRA and whether it is permissible in the circumstances to contract out of the right not to be unfairly dismissed. (In answering this question the court relied upon the finding of the UK Court of Appeal in Igbo v Johnson Mathery Chemicals Ltd 1986 IRLR 215 (CA). In casu the employee entered into a holiday agreement with her employer that provided that the contract of employment will automatically terminate if the employee failed to work on a specified date. The court held that the contractual provision had the effect of limiting the statutory protection against unfair dismissal and was void.) The court noted that as "a rule of thumb employers can make an agreement varying or waiving their rights under the Act but employees cannot do so by means of individual consent" (Mahlamu v CCMA supra 388 referring to Brassey Commentary on the Labour Relations Act RS 2 of 2006 A9-6) as the right serves both the interests of other employees and the public interest. The court concluded that "a contractual device that purports to render the termination of a contract of employment as something other than a dismissal, with the result that the employee is denied the right to challenge the fairness thereof in terms of section 188 of the LRA, is the very mischief that section 5 of the Act prohibits" (Mahlamu v CCMA supra 389).
The Labour Court in Nape v INTCS Corporate Solutions (Pty) Ltd (2010 8 BLLR 852 (LC) 868), criticized the finding of the court in Sindane as placing "far too much emphasis on the rights of parties to contract out of the Act". In this far-reaching decision the court, expressing contempt for labour-broking arrangements and their infringement of fair labour practices, was prepared to extend responsibility for the fair dismissal of the broker's employee to both employer and client. In this matter the employee of a labour-broker, while placed at a client, was found guilty of sending an offensive e-mail to another employee using the client's computer system. Following the client refused to permit the employee to return to its premises, the employee was retrenched by the employer. The Labour Court, assessing whether the employee had been unfairly dismissed, noted that in terms of the contract of employment the broker was entitled to dismiss the employee "on grounds proven by the client to be reasonable and/or substantively and procedurally fair". The contract between the broker and its client permitted the client to request an employee's removal on any ground. The employer argued that the client had acted lawfully because it exercised an option permitted by the contract and that, in the circumstances, it had no alternative other than to retrench the employee.
The court noted that, although the relationship between the broker and its client was lawful, it did not follow that all the terms of the contract which governed that relationship were also lawful. A contractual provision that enables a labour-broker to withdraw an employee placed with a client, the court held, is contrary to public policy and in breach of the employee's constitutional right to fair labour practices. The court noted that, in spite of legislative approval of labour-broking services, labour-brokers and their clients are "not at liberty to structure their contractual relationships in a way that would effectively treat employees as commodities to be passed on and traded at the whim and fancies of the client" (Nape v INTCS Corporate Solutions (Pty) Ltd supra 862). The client of a labour-broker has a legal duty to do nothing to undermine an employee's rights to fair labour practices, unless the limitation is justified by national legislation (Nape v INTCS Corporate Solutions (Pty) Ltd supra 863). The court added that, in applying the right not to be unfairly dismissed, it is not bound by contractual limitations created by the parties and may not "perpetuate wrongs exercised by private parties who wield great bargaining power" ((Nape v INTCS Corporate Solutions (Pty) Ltd supra 864).
The court noted further that there is nothing in the text of section 198 of the Act that indicates that a labour-broker and a client may limit the right of an employee not to be unfairly dismissed, and a court is not bound by contractual limitations created by parties through an agreement that conflicts with the fundamental rights of workers. It concluded that any clause in a contract between a labour-broker and a client which allows a client to undermine the right not to be unfairly dismissed is against public policy and unenforceable. While the court acknowledged that an employee has no right of recourse against a client of a labour-broker for unfair dismissal, it was of the view that brokers are not powerless when forced by their clients to treat their employees unfairly. It suggested that brokers in such situations may approach a competent court to order the client to refrain from such conduct and in appropriate circumstances the court may go so far as to order the client to reinstate an unfairly dismissed employee. The willingness of the OBITER 2011 court in Nape to move beyond its legislative mandate, by implying publicpolicy considerations into the contract so as to temper unfair contractual and legislative provisions, is to be applauded.
What is apparent from these judicial decisions is that labour-brokers may no longer hide behind the shield of commercial contracts to circumvent legislative protections against unfair dismissal. A contractual provision that provides for the automatic termination of the employment contract undermines an employee's rights to fair labour practices, is contrary to public policy, unconstitutional and unenforceable (Grogan "The Brokers Dilemma" 2010 Employment Law 6). As noted by the Namibian Supreme Court in Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia (2011 1 BLLR 15 (NmS)) agency workers are not commodities and such employees are to be afforded equivalent respect and protection of their human and social rights as employees in standard employment relationships (supra 74). While it still remains to be seen (pending further deliberations by labour, government and business) whether labour-broking arrangements will be regulated or prohibited it is apparent that the contractually and statutorily sanctioned commoditisation and exploitation of labour-broking employees will no longer be immune from judicial intervention.

Automatic termination due to impossibility of performance
In terms of common-law principles of contract, a contract terminates automatically when it becomes permanently impossible to perform the terms of the contract due to no fault on the part of either party. In the context of an employment contract impossibility of performance will result in the automatic termination of such contract and will not constitute a dismissal. Supervening impossibility of performance occurs when "performance of the obligation is prevented by superior force that could not reasonably have been guarded against" (Brassey "The Effect of Supervening Impossibility of Performance on Contract of Employment" 1990 Acta Juridica 22 23). This may include physical impossibility such as acts of nature, the death of an employee, acts of state (such as imprisonment or conscription of an employee), or acts of third parties (such as strikes) that prevent an employee from working or an employer from providing employment. Impossibility must be absolute and must not be attributable to the fault of either party. The defence of impossibility of performance has been raised in a number of scenarios, with limited success.

1 Termination at the instance of shareholders
The defence of impossibility of performance was rejected by the Labour Court in PG Group (Pty) Ltd v Mbambo NO (2005 1 BLLR 71 (LC)). In this matter the court considered whether a resolution by members of a company, removing the employee from office, constituted a dismissal (in terms of section 220 of the Companies Act 61 of 1973 the members of a company in a general meeting may by extraordinary resolution remove directors before the expiration of their terms of office). The employer argued that, as the actions of the shareholders were imposed on it by virtue of the articles of association and it had neither alternative nor discretion but to treat the appointment of the employee as terminated, the employee's contract of employment terminated due to supervening impossibility of performance (PG Group (Pty) Ltd v Mbambo 2005 1 BLLR 71 (LC) 73). The court found that one of a company's primary rules of attribution is that the decision of members in a general meeting constitutes a decision of the company itself (supra 74). It concluded that it was the employer, not its shareholders, who took the decision to dismiss the employee (supra 74).
A similar approach was adopted by the court in Chillibush v Johnston (supra 607) which considered whether the employee's removal from the board of directors led to the automatic termination of his employment contract. (In casu the employee had been appointed as both a creative director as well as a shareholder of the company. The shareholders' agreement provided that, should any shareholder cease to be a director or have his employment terminated by the other shareholders, he would be obliged to resign as director and to offer his shares for sale to the other shareholders. Upon the employee's resignation as a director and cancellation of the shareholders' agreement the employer argued that the employee's contract of employment had been automatically terminated on that basis.) The court held that it was not permissible to allow an employer to contractually negotiate the terms of a dismissal in a contract of employment (or as in the present case the articles of association) and will be in contravention of the provisions of section 5(2)(b) and 5(4) of the LRA. The court concluded that the board's resolution of removing the employee from his post constituted a dismissal (see also SA Post Office Ltd v Mampeule supra 1052). The mere fact, the court noted, that the employee was lawfully removed as director in terms of the Companies Act did not mean that he was deprived of the right to protection against unfair dismissal as "labour law and company law essentially operate in their own spheres" (Chillibush v Johnston supra 622).
While shareholders have an unfettered discretion to terminate the directorship of any of its directors, different rules and procedures apply when dismissing an employee in terms of the LRA. Fairness and not lawfulness is the overriding principle in labour law. As a consequence employers relying upon impossibility of performance to justify the automatic termination of the employment contract in such circumstances will most certainly fail.

2 Incarcerated employees
The Labour Court has considered whether the inability of an employee to render services to the employer, as a result of the employee's incarceration, gives rise to the lawful termination of an employment contract on the basis of impossibility of performance. In NUM v CCMA (2009 8 BLLR 777 (LC)) the employer argued that the employee's imprisonment prevented the performance of his contractual obligations and constituted a repudiation of his employment contract. The acceptance of this repudiation, the employer argued, resulted in the termination of the contract by operation of law. The

OBITER 2011
Labour Court noted, in an obiter dictum, that when impossibility of performance of the contract is temporary the employment contract is suspended for the period of incapacity but if permanent or for a lengthy period of time the contract terminates automatically by operation of law. (The Labour Court, in overturning the award on review, was satisfied that on the facts the commissioner had made no attempt to establish whether the employee's incapacity was permanent or temporary in nature.) However, in the absence of clear guidelines delineating temporary from permanent impossibility this approach is likely to be fraught with uncertainty.
An approach more compatible with the provisions of the LRA was advocated by the Labour Appeal Court in Samancor Tubatse Ferrochrome v MEIBC (2010 8 BLLR 824 (LAC)). In this matter the employee, after having been incarcerated for 150 days, was advised (by means of a letter addressed to the police station at which he was held) of his dismissal for "operational incapacity" due to his inability to tender his services. The Labour Appeal Court noted that dismissal for incapacity should not be confined to incapacity arising from ill-health, injury or poor performance and that the determination of the fairness of a dismissal for incapacity depends upon the facts of the matter. The court was satisfied that, in light of the commercial need to fill the employee's position which was critical to the workplace, and due to the uncertain period of incarceration, dismissal for "operational incapacity" was appropriate in the circumstances. (Nonetheless the court held that the dismissal was procedurally unfair as the employee had been deprived of the right to a hearing and compensation was awarded in this regard.) The approach of the Labour Appeal Court in Samancor serves to reconcile common law and statute, by accommodating common-law principles of impossibility within the regulatory framework of the LRA. In this way the employer's common-law rights to the employee's uninterrupted services can be fairly balanced against the employee's entitlement to a procedurally and substantively fair dismissal.

4
Automatic termination of deserting employees

1 Desertion in the private sector
Desertion occurs when an employee absconds from the workplace with no intention of returning. Where there is no intention to abscond there is no desertion but instead misconduct in the form of absence without permission. Desertion constitutes a breach of a fundamental term of the employment contract and the employee is regarded as having repudiated the contract. In terms of the common law an employer faced with an employee's act of repudiation has the election of accepting the repudiation or instead holding the employee to the terms of the contract. In the context of desertion, the question has arisen whether the deserting employee terminates the employment relationship and constructively resigns by such conduct or whether the employer terminates the employment relationship by acting upon the desertion. If the termination is as a result of the employer's conduct it will constitute a dismissal in terms of the LRA and necessitate compliance with substantive and procedural fairness. If the act of desertion brings about the termination of the employment contract it will not constitute a dismissal and the provisions of the LRA do not apply.
This issue was addressed in SABC v CCMA (2001 22 ILJ 487 (LC)) in which the Labour Court considered whether the employee's failure to return to work by a specified date gave rise to the termination of the contract of employment. The employer argued that no dismissal had taken place as the employee's desertion, like an act of resignation, constituted the juridical act that terminated the employment contract. The court rejected this argument and found that in accordance with the principles of common law, resignation can be clearly distinguished from repudiation (supra 492). It pointed out that "Although in some superficial respects, a desertion might be construed as a sort of tacit resignation or constructive resignation, it is not an act which is permitted by the terms of the contract. Because desertion is not permitted by the terms of the contract, it constitutes a breach. It is not part of our law that a breach of a contract however material brings about a termination of the contract. In our law, such an act on the part of a party simply entitles the other party to acknowledge the "repudiation", and then by a juridical act of its own, usually referred to as an "acceptance" of the repudiation, to put an end to the contract by consciously electing to do so. From this perspective, it is not the act of desertion which terminates the contract of employment, but the act of the employer who elects to exercise its right to terminate the contract in the face of that breach" (supra 492-493).
The court held, on this basis, that the deserting employee was dismissed by the employer and that such dismissal must comply with the LRA's requirements of substantive and procedural fairness.
While the Labour Court acknowledged that it would be futile to hold a hearing for an employee who has deserted and has indicated an unequivocal intention not to return to work or whose whereabouts are unknown, it noted that the situation is different in the instance of an employee whose absence is unexplained (SABC v CCMA supra 492-493). Such absence cannot be regarded as desertion without evidence of this and needs to be treated as misconduct in the form of absence without leave. Whether desertion has taken place, the court held, is a matter of fact and will depend upon the length of absence of the employee in light of the operational requirements of the employer (SABC v CCMA supra 492-493). The court noted that, whether or not an employer should convene a disciplinary enquiry before taking the decision to terminate is dependent on the relevant circumstances and the practicality of doing so. Where there is nothing preventing the employer from holding a disciplinary enquiry, for instance if the whereabouts of the employee is known, then this should be done. However, as noted by the Labour Appeal Court in the earlier matter of SACWU v Dyasi (2001 7 BLLR 731 (LAC) 735) the "the choice is not always in fact real" (supra 735). Where an employee has deserted and cannot be traced the employer often has no choice in such circumstances other than to accept the repudiation. In such circumstances, the court conceded, it may be argued that the contract terminated by operation of law (supra 735; and see also NUMSA obo Magadla and AMT Services 2003 24 ILJ 1769 (BCA)).
A contrary approach was adopted by the Labour Court in SA Transport & Allied Workers Union obo Langa v Zebediela Bricks (Pty) Ltd (2011 32 ILJ 428 (LC)). In this matter the employees were dismissed following an illegal work stoppage and in terms of a subsequent agreement were all unconditionally reinstated, Nevertheless they failed to report for work in spite of a High Court interdict compelling them to so and in defiance of repeated pleas by the employers for them to return to work. On the facts the court was satisfied that the majority of employees had no intention of returning to work and had deserted. This unequivocal act of desertion, the court held, automatically terminated their contracts of employment (supra 434). The court concluded that, as a result of this automatic termination, the employees were not dismissed nor were they entitled to a hearing prior to their termination. (However, the evidence revealed that a group of employees claimed to have been intimidated into not reporting for work. Those employees, the court held, should have been disciplined for absence without permission and should have been afforded a fair hearing. The court concluded that the failure to hold a hearing for those workers constituted procedural unfairness.) The common-law principle of impossibility of performance is intended to provide a contractual remedy to employers and employees that face the absolute or permanent impossibility of performance of the terms of the contract and where no purpose would be served by a hearing. An employer faced with the unenviable situation of a permanently absconded employee whose whereabouts are unknown, may justifiably argue that the contract of employment has terminated automatically by virtue of such impossibility. In such circumstances an employer cannot be expected to comply with dismissal procedures as the act of termination does not emanate from a decision of the employer. Employees who can, however, be located should be dealt with in terms of the employer's disciplinary codes and procedures. However, the recent approach espoused by the court in Zebediela Bricks confirms that this is not a hard and fast rule. Instead what is reasonable and possible depends upon the facts of each case.

2 "Deemed dismissals" in the public sector
In the public sector there is statutory provision for the automatic termination of public servants' employment contracts in designated circumstances. Section 17(5)(a) of the Public Service Act (103 of 1994) provides that "an officer who absents himself or herself from his or her official duties without the permission of his or her head of department, office or institution for a period exceeding one calendar month, shall be deemed to have been discharged from the public service on account of misconduct, with effect from the date immediately succeeding his or her last day of attendance at his or her" (s 17(5)(a)(i)).
If an officer who is deemed to have been so discharged, reports for duty any time after the expiry of the specified period, the relevant executing authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that employee in his or her former position or any other post or position (s 17(5)(a)(ii) and (b)).
In a virtually identically worded provision, section 14 of the Employment of Educators Act (76 of 1998) provides for the deemed dismissal of an educator who is absent from work for a period exceeding fourteen consecutive days without the permission of the employer (s 14 (2)). The effect of these statutory provisions is that, provided the stipulated requirements are satisfied, the employment contract terminates by operation of law. As this termination is triggered by the occurrence of an event and is not based on an employer's decision, there is no dismissal and the employee is not entitled to a hearing nor is the termination subject to judicial review (Nkopo v Public Health and Welfare Bargaining Council 2002 23 ILJ 520 (LC);andMEC, Public Works, Northern Province v CCMA 2003 10 BLLR 1027 (LC)). Determining whether the requirements of the statutory provision are satisfied is objectively ascertainable and should a factual dispute arise in this regard, such as the reasons for the employee's absence, such dispute is justiciable by a court (MEC, Public Works, Northern Province v CCMA supra 1029).
While provision is made in the legislation for the subsequent reinstatement of an employee on good cause shown, the courts have confirmed that an employer's decision not to reinstate the employee does not constitute a dismissal as the contract remains terminated by operation of law. In De Villiers v Head of Department: Education, Western Cape Province (2009 30 ILJ 1022 (C)) the court was satisfied that, because the employment contract had terminated by operation of law independently of any act or decision on the part of the employer, the employer's decision not to reinstate did not constitute a dismissal. In determining whether the employer's actions constituted administrative action subject to administrative review the court considered the source, nature and subject matter of the power exercised, whether it involves the exercise of public duty, and how closely it related to public policy matters that are not administrative or to the implementation of legislation that is (De Villiers v Head of Department: Education, Western Cape Province supra par 10, citing Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 1 SA 853 (SCA); and see also President of the Republic of SA v SA Rugby Football Union 2000 1 SA 1 (CC)). While endorsing the findings of the Constitutional Court in Chirwa v Transnet Ltd (2008 29 ILJ 73 (CC) -the court was required to determine whether it had jurisdiction to adjudicate the alleged unfair dismissal of a public-sector employee and whether the jurisdiction of the High Court had been ousted. It held that employmentrelated disputes involving allegations of unfair conduct by public-sector employees must be resolved through the dispute-resolution framework created by the LRA, instead of in terms of PAJA which was specifically enacted to regulate administrative action and Gcaba v Minister for Safety and Security (2009 30 ILJ 2623 (CC)) that employment and labour issues do not generally amount to administrative action it noted that there are exceptions to this rule. It is necessary, the court held, to determine in each case whether the employment-related dispute can be resolved in terms of labour legislation and whether the conduct is sourced in contract or statute. The court was satisfied that the exercise of public power, vested in a public functionary who is required to exercise it in the public interest, can constitute administrative action regardless of whether it affects the public at large or an individual employee. In considering the facts of the case the court was satisfied that the employer's actions involved a "straight-forward exercise of statutory power" (De Villiers v Head of Department: Education, Western Cape Province supra par 20) once the employment contract had been terminated. It concluded that, in light of the inequality of the parties and the lack of alternative recourse for the employee which would leave the respondent's powers unchecked, the employer's conduct in exercising a discretion whether to reinstate constituted reviewable administrative action (cf PSA obo Van der Walt v Minister of Public Enterprise 2010 1 BLLR 78 (LC) in which Francis J held that the termination of the employee's employment in terms of the statutory provision constitutes neither administrative action nor a dismissal, because its operation entails no decision on the part of the employer).
The court added that even if it were incorrect on this point the respondent's actions would nonetheless be open to review on the ground of legality in terms of section 158(1)(h) of the LRA, which provides that the Labour Court may review any conduct by the state in its capacity as employer on any grounds permissible in law. In keeping with this provision public officials must be accountable and may not make arbitrary or irrational decisions. Such decisions are reviewable for want of compliance with the Constitution and the rule of law. The court held that an employer determining whether an employee has shown good cause for reinstatement must, in exercising its discretion, bear in mind the principles enunciated in the Good of Good Practice: Dismissal relating to fair dismissal for misconduct. Factors such as whether the misconduct was serious and rendered the continued relationship intolerable ought to influence the employer's determination of "good cause" for reinstatement, as should considerations of progressive and corrective discipline and constructive labour relations (De Villiers v Head of Department: Education, Western Cape Province supra par 30). An employer, the court held, should as a general rule approve the reinstatement of an employee unless, having regard to a full conspectus of relevant facts and circumstances, it is satisfied that the employment relationship has been rendered intolerable (De Villiers v Head of Department: Education, Western Cape Province supra par 30). Adding to this the Labour Court in Grootboom v The National Prosecuting Authority (2010 9 BLLR 949 (LC)) held that in establishing whether there was good cause for reinstatement the employee has to provide a reasonable explanation for the unauthorised absence. The employer, the court held, does not have unfettered discretion in determining whether or not to reinstate the employee and must be influenced by considerations of fairness and justice. Endorsing this approach the Labour Court in Mahlangu v Minister of Sport and Recreation (2010 5 BLLR 551 (LC)) noted that one of the key factors to take into account is deciding whether to reinstate is "whether absence without authority on the part of the employee was wilful including objectively considering whether or the employment relationship has broken down due to what section 17(5)(a) has already categorised as misconduct on part of the employee" (supra 556).
Concern was expressed by the Labour Court in HOSPERSA v MEC for Health (200312 BLLR 1242) about the draconian nature of such provisions. In an obiter dictum the court noted that section 17(5) was a draconian procedure that should be "used sparingly" (supra 1249). Reliance on the employer's disciplinary code was held by the court to be a "less restrictive means of achieving the same objective of enquiring into and remedying an employee's absence from work" (supra 1249). In spite of these reservations it would appear that these statutorily sanctioned "deemed dismissal" provisions have withstood judicial scrutiny and continue to apply to employees in the public sector.

Conclusion
To the extent to which labour legislation fails to regulate the employment relationship comprehensively the common law of contract continues to apply. However, in order to withstand judicial scrutiny the common law must be compatible with constitutional values, as reflected in legislative and public policy. Legislative policy, in keeping with the doctrine of separation of powers, is to be enforced by the courts without unwarranted interference. Thus the statutorily mandated "deemed dismissal" provisions of application to public-sector employees will withstand judicial scrutiny in the absence of legislative amendment. Public policy, on the other hand, requires the courts to balance the interests of the employer in enforcing the agreed terms of the contract against the employee's interests in being treated fairly. Employers' reliance upon automatic termination clauses in contracts of employment, in order to contract out of legislative protections, has been rejected by the courts as being contrary to both legislative and public-policy considerations.
The courts have confirmed that statutory rights are conferred for the benefit of all employees and are incapable of consensual invalidation by the parties. Thus, in keeping with public policy, labour-brokers may no longer hide behind automatic termination provisions which serve nothing more than to perpetuate the commoditisation and exploitation of vulnerable labour-broking employees. Similarly, in keeping with legislative policy, private-sector employers faced with imprisoned and absconding employees are required to comply with the dismissal provisions of the LRA. It is only in the event of employers facing a situation of absolute or permanent impossibility of performance of the contract that the common law will prevail and the employment contract can be terminated by operation of law.

Tamara Cohen
University of KwaZulu-Natal