A Critical Appraisal of Dismissals at the Behest of a Third Party: The Impact of the Constitutional Labour Rights

Abstract

The pivotal judgments on dismissals at the behest of a third party – East Rand Proprietary Mines Ltd v UPUSA, Lebowa Platinum Mines v Hill, NUMSA v Hendor Mining Supplies a Division of Marschalk Beleggings (Pty) Ltd, TSI Holdings (Pty) Ltd v NUMSA, NUPSAW obo Mani v National Lotteries Board and NUMSA v High Goal Investments t/a Chuma Security Services – deeply implicate discrimination in all its manifestations, accountability, gendered precariousness and social justice. This contribution explores the focal questions raised in recent times concerning the fairness of a dismissal at the instance of a third party. First, there are fundamental points relating to the constitutional and statutory protection of security of employment. Secondly, there are those familiar problems often associated with substantive and procedural fairness that surface here under the guise of questioning the disciplinary power of the employer. In this context, inroads into managerial prerogative and disciplinary procedure are amplified where there has been no fault on the part of the employee and no breakdown of the trust relationship, or where the employee has been disciplined, but not dismissed and the employer did not want to terminate the employee’s employment but was coerced by the third party to do so. Thirdly, there is the thorny issue of the reason behind the third-party demand and the related issue of intolerability caused by the targeted employee. And finally, there is the issue of striking in support of a demand for dismissal of a co-employee.