In the recent case of Harding v Petzetakis Africa (Pty) Ltd (2011) 20 LC 8.29.3, it was held that an employee's dismissal was automatically unfair when she was dismissed for refusing to carry out her employer's instruction to dismiss two employees.

The dispute arose when the Chairperson and CEO of the company instructed the applicant, who was the managing director, to summarily dismiss two employees. She did not comply with the instruction because she believed she would be contravening the Labour Relations Act 66 of 1995 ('the LRA'). She had tried to express her concerns that the dismissals would be unlawful to the CEO, but he refused to entertain her apprehension.

The applicant ignored her superior's instruction and refused to dismiss the employees. She was subsequently dismissed and offered a severance package. She believed that the employer acted contrary to s5(2)(c)(iv) of the LRA, which prohibits an employer from dismissing an employee for their 'past, present or anticipated...failure or refusal to do something that an employer may not lawfully permit or require an employee to do'. She thus claimed that she had been automatically unfairly dismissed in terms of s187 of the LRA.

The employer did not give a reason for her dismissal in the termination letter and it was only in the pre-trial minute that the employer revealed the justification for her dismissal, which was that her services had been terminated due to 'poor-performance and/or misconduct'. During the trial, the applicant was the only witness and the employer did not lead any evidence about her alleged incapacity or misconduct. Instead the employer attempted to extract evidence of her misconduct or incapacity through cross-examination.

The court found that her dismissal was automatically unfair because the applicant had proven her prima facie case that she had been dismissed for a failure to summarily dismiss the employees.

The relevance of this case lies in the fact that once the employee proves that there was an unfair dismissal, the evidentiary burden shifts to the employer to prove that the dismissal was not for an automatically unfair reason.

If the employer does not discharge the evidentiary burden, then the Court will accept the applicant's version. This case is a lesson to all employers to ensure that instructions given to employees are lawful. It is also an example of what may happen when the employer does not attempt to meet the case presented by the employee.

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