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Tuesday, 6 July 2010
Substantive Fairness in Dismissal
Ganga / Grassroots Entrepreneurial Development
(Pty) Ltd t/a Grassroots Scape Facilities – (2010) 19 CCMA 8.1.1
Subject matter classification:
substantive fairness in dismissal - incapacity and poor performance - applicant dismissed for failing to obtain driver’s licence - possession of driver’s licence not condition of employment - – dismissal unfair
The respondent, a landscaping and maintenance company, employed the applicant to manage one of its client’s sites on a permanent basis. The respondent terminated the relationship a year later because the applicant had failed to obtain a driver’s licence. The respondent denied that the applicant was an employee.
The commissioner noted that the applicant’s salary fell below the threshold that triggers the operation of the statutory presumption of employment (section 200A of the Labour Relations Act 66 of 1995). If one of the factors mentioned in the presumption is present, the onus rests on the employer to rebut the presumption. Although the applicant ran his own small business and was permitted to work for others, and also had flexible working hours, his salary from the respondent was his primary income and he had not assumed the financial risk of the project for which he had been engaged. Applying the “dominant impression test”, the commissioner concluded that the applicant was an employee. The termination of the applicant’s employment before the end of the two-year period for which he had been engaged constituted a dismissal.
The commissioner held further that, since the respondent was aware that the applicant did not possess a driver’s licence when it employed him, and since possession of a driver’s licence was not a condition of his employment contract, his dismissal was unfair.
The applicant was awarded compensation equal to nine months’ salary.
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