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In terms of section 18 of the Constitution of the Republic of South Africa, 1996 everyone has the right to freedom of association. In terms of section 23 of the Constitution everyone has the right to fair labour practices, and every worker has the right to form and join a trade union. The right to freedom of association and the right of every worker to form and join a trade union is expressed in section 4 (1) of the Labour Relations Act 66 of 1995 ("the LRA"), which guarantees every employee the right to join a trade union.

The right to freedom of association of employees is protected by section 5 of the LRA. In terms of section 5 (1) of the LRA, no person may discriminate against an employee for exercising any right conferred in terms of the LRA. Accordingly, an employer may not discriminate against an employee on the basis that he or she is a member of a trade union. The combined effect of section 4 (1) and section 5 (1) of the LRA is that an employee is guaranteed the right to join a trade union, and is protected against discrimination by his or her employer as a result of the exercise of this right.

In terms of section 185 of the LRA every employee has the right not to be unfairly dismissed and / or to be subjected to unfair labour practices. The concept of "unfair dismissal" is a central to the LRA, and requires that the dismissal of an employee complies with the standards of substantive and procedural fairness. “Substantive fairness” refers to the reason for the dismissal of an employee, and “procedural fairness” refers to the process which is followed for the dismissal of the employee. A dismissal which is not based on a fair reason and conducted in terms of a fair process, is regarded as an unfair dismissal.

Section 187 of the LRA recognises that certain dismissals are inherently unfair, and provides for the concept of an “automatically unfair dismissal”. The focus of section 187 is on substantive fairness, i.e. the reason for the dismissal. Section 187 of the LRA provides for a number of instances where the dismissal of an employee is regarded as automatically unfair on the basis of the reason for such dismissal.

In terms of section 187 (1) of the LRA a dismissal is automatically unfair if the employer, in dismissing the employee acts contrary to section 5 of the LRA. As noted above, section 5 of the LRA guarantees an employee protection against discrimination for exercising his or her rights in terms of the LRA, which includes the right to join a trade union. Accordingly, the dismissal of an employee by his or her employer for exercising his or her right to freedom of association by joining a trade union or participating in the lawful activities of a trade union, constitutes an automatically unfair dismissal.

The effect of section 187 of the LRA and the concept of an automatically unfair dismissal is that the employer is unable to justify or defend the dismissal on the basis that a fair procedure was followed. The reasons for these dismissals are so grossly unfair that no procedure could ever cure the prejudice and unfairness to the employee. The policy behind the concept of an automatically unfair dismissal in terms of section 187 of the LRA is clear when considered in light of the Constitution and the rights envisaged in section 5 of the LRA. These rights are regarded as fundamental, and deserve special protection against infringement.

An employee who has been unfairly dismissed has certain remedies against his or her employer in terms of the LRA. Section 193 of the LRA provides that an arbitrator or the Labour Court may order that the employer reinstate or re-employ the employee, and may order that the employer pay compensation to the employee. The amount of compensation which may be awarded to an employee in terms of section 193 of the LRA is subject to the limits stipulated in section 194 the LRA.

Section 194 (1) provides that the compensation awarded to an employee whose dismissal is found to be unfair must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration of the employee. The compensation which may be awarded in terms of section 194 (1) must be just and equitable, taking into account the particular circumstances of the case, but is subject to an absolute maximum of 12 months’ remuneration. An arbitrator or the Labour Court cannot award compensation in excess of this limit.

For purposes of this article, it should be noted that section 194 (3) provides for a special limit which only applies in the case of automatically unfair dismissals. In terms of section 194 (3) the compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable taking into account all the circumstances, but may not exceed the equivalent of 24 months' remuneration. Accordingly, an employee whose dismissal is automatically unfair may be awarded up to 24 months’ remuneration as compensation, while an employee whose dismissal is unfair, but not automatically unfair, may only be awarded compensation up to 12 months’ remuneration.

The effect of section 194 the LRA is that an employee may be awarded up to double the amount of compensation in the case of an automatically unfair dismissal compared to an unfair dismissal which is not automatically unfair. The flipside of section 194 is that an employer may be liable to pay up to double the amount of compensation to an employee whose dismissal is automatically unfair. The special limit which applies in the case of automatically unfair dismissals can therefore be regarded as a deterrent to employers and serves to further protect and entrench the special rights of employees contemplated in section 5 of the LRA.