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
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
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
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
About Fraser Milner Casgrain LLP (FMC)
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