DISMISSAL OF EMPLOYEES AT THE REQUEST OF A THIRD PARTY (EMPLOYER’S CLIENT)

Although it is permissible and fair to dismiss employees at the request of a third party, there are still various steps that needs to be followed and factors that needs to be considered before the dismissal can be viewed as fair. As a rule, it is very unusual that this type of dismissal is fair.

In the matter of NUMSA en Andere v High Goal Investments CC t/a Chuma Security Services the court had to rule whether the dismissal of the applicants, who are female, were automatically unfair in terms of section 187(1)(f). If it is found that it is not an automatically unfair dismissal, the dismissal will only be unfair if the employer is unsuccessful in proving that the dismissal took place due to incompetence, misconduct or operational requirements.

The applicants, female security officers, were dismissed by the employer after the third party requested their dismissal, since crime allegedly increased on their premises, and the third party also requested that more male security officers should be appointed. The dismissal of the applicants was simply due to the request of the third party.

The court found the following:

1. There was referred to further judgment which determines that at the dismissal of an employee at the request of a third party, the dismissal may only take place if there is no other alternative to the dismissal;
2. There are certain principles an employer must consider and follow when he receives a request from a third party for dismissal of others. These principles are set out in Lebowa Platinum Mines Ltd v Hill (1998) 19 ILJ 1112 (LAC);
3. The employer didn’t do any investigation to determine whether there was an actual increase in crime on the premises of the third party;
4. The employer has failed to notify the third party that they should withdraw their request, since the removal of female security officers to make room for male security officers is against the right to equality;
5. The employer failed to look for alternative jobs for the women;
6. There was no reasonable explanation for the applicants’ dismissal;
7. The dismissal based on operational reasons was a fait accompli since there was no mention of any section 189 process;
8. Some of the important principles that must be followed in the case where an employer receives a request from a third party/client:

• There should be a reasonable and complete foundation for the third party’s request;
• The mere fact that the dismissal will maintain a good commercial relationship between the employer and client is inadequate;
• An investigation to alternatives for dismissal should be done;
• Proper consultation should be held with the affected employee and opportunity must be created that the employee can make suggestions;
• Consider unfairness and the impact it may have on the employee.

9. The applicants’ dismissal is substantially and procedurally unfair.

Author: Nicolette Ras