Patrick Deale - Third Party Dismissal

2018-09-15

Labour lawyer & mediator

What if a client instructs a contractor to remove one its employees?

Businesses tend to focus on their core functions and outsource non-core functions to specialists. They negotiate with service providers to supply the services on agreed terms and costs – usually in the form of a
service level agreement (SLA).

An SLA typically requires the contractor to provide the expertise and the people to deliver the services. Apart from the deemed employment situations, there is no existing or potential employment relationship between the client and the contractor.

So what must the contractor do if the client demands that one or more of its employees must be removed from working on the service?

In Lebowa Platinum Mines Ltd v Hill1, the Labour Appeal Court provided the following useful guidelines or a “test” to consider in a case which deals with dismissal at the behest of a third party. TIP:
A contractor may be tempted to simply dismiss the employee because there’s no alternative work available for him or her.

But it’s clear that the court will expect the contractor to do a lot more to try and rescue the employee’s job. It will be evident from the elements listed in the test, that both the client and the contractor have obligations to be reasonable. 

1 (1998) 19 ILJ 1112 (LAC) and Grogan “Dismissal” page 536

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