Johannes Wynand Louw Hofmeyr v Andre Saaiman t/a SA Endovascular Group Practice

Dr Hofmeyr, a cardiologist, was employed by Dr Saaiman from June 2013 to 2 May 2017. He was initially offered a position with a view to gaining general cardiology experience and eventually taking over the practice when Dr Saaiman retired. However, the understanding was never formalised and Dr Saaiman's retirement was delayed. By 2015, the relationship soured due to differences in approach, Dr Saaiman's volatile character, and Dr Hofmeyr's uncertainty about his future prospects. Dr Hofmeyr began seeking alternative employment. On 28 April 2017, Dr Saaiman confronted Dr Hofmeyr after hearing he was joining Mediclinic Panorama. Dr Saaiman demanded that if Dr Hofmeyr wanted to remain employed, he had to sign a restraint of trade agreement restricting him from practicing within a radius of Kuilsriver for two years. When Dr Hofmeyr refused to sign the restraint on 2 May 2017, Dr Saaiman dismissed him with immediate effect. Dr Hofmeyr was paid his salary for May and June 2017 and a month's pay in lieu of notice. The matter was referred to the CCMA and after conciliation failed, Dr Hofmeyr brought an application in the Labour Court alleging automatically unfair dismissal under section 187(1)(c) of the LRA and, alternatively, ordinary unfair dismissal.

• Whether an individual employee can rely on section 187(1)(c) of the LRA which refers to 'employees' (plural) rather than 'employee' (singular)
• Whether the dismissal constituted an automatically unfair dismissal under section 187(1)(c) as a dismissal to compel acceptance of a demand in respect of a matter of mutual interest
• Whether the dismissal was substantively unfair under section 188 of the LRA
• Whether the dismissal was procedurally unfair under section 188 of the LRA
• What remedy and quantum of compensation is appropriate

1. The dismissal of the applicant was not automatically unfair. 2. The dismissal of the applicant was substantively and procedurally unfair. 3. The respondent is ordered to pay the applicant compensation in the amount of R1,028,639.36 (4 months' salary at R257,159.84 per month). 4. There is no order as to costs.

An individual employee cannot rely on section 187(1)(c) of the LRA to claim automatically unfair dismissal. Post-2014 amendment, section 187(1)(c) refers to 'employees' (plural) rather than 'employee' (singular), which is used in all other subsections of section 187(1). This deliberate linguistic distinction reflects that section 187(1)(c) is concerned with protecting collective bargaining and the associated right to strike, which are collective rights in nature, not individual rights. The purpose of the section is to prevent lock-out dismissals and protect the integrity of collective bargaining processes. Individual employees retain protection against unfair dismissal under section 188 of the LRA, but cannot access the enhanced protection and remedies applicable to automatically unfair dismissals under section 187(1)(c). The underlying rights worthy of protection in the other automatically unfair dismissal grounds (freedom of association, protection against discrimination, exercise of LRA rights, constitutional protections) can apply to individual employees, but the collective bargaining protection in section 187(1)(c) is fundamentally collective in nature.

The court made several observations: (1) The dispute referred to conciliation characterized as unfair dismissal remains the same dispute even if the alleged reason for dismissal changes or is recharacterized as automatically unfair dismissal, following NUMSA v Driveline Technologies and Intervalve. (2) Compensation under the LRA is a solatium for injured feelings and humiliation - for impairment of dignity - rather than strictly a payment for loss of employment. It is analogous to delictual awards for non-patrimonial loss rather than contractual damages. Factors to consider include the nature and seriousness of the wrong, circumstances, employer's behavior and motives, extent of humiliation, abuse of relationship, and post-dismissal conduct, as set out in Minister of Justice v Tshishonga and ARB Electrical Wholesalers v Hibbert. (3) The content of an employee's duty of trust and confidence is flexible and must be assessed based on the particular facts of each case. While fiduciary employees may have heightened duties, these must be assessed contextually. (4) Employees may, during their free time when termination is contemplated, seek other employment or begin establishing their own business, subject to respecting the employer's confidences and not competing while employed. The court referenced Atlas Organic Fertilizers v Pikkewyn Ghwano regarding setting up a company in anticipation of departure.

This case is significant for establishing that post-2014 amendment, section 187(1)(c) of the LRA applies only to collective dismissals and not to individual employees. The deliberate use of 'employees' (plural) in section 187(1)(c) - in contrast to 'employee' (singular) used in all other subsections of section 187(1) - reflects the legislature's intention to limit this provision to the collective bargaining context. The purpose of section 187(1)(c) is to protect the integrity of collective bargaining processes and prevent lock-out dismissals, not to provide enhanced protection for individual employment disputes. The case reinforces that individual employees retain protection against unfair dismissal under section 188 of the LRA, but the enhanced remedies available for automatically unfair dismissals under section 187(1)(c) are reserved for situations involving collective rights. The case also illustrates the approach to compensation as a solatium for dignity impairment, following ARB Electrical Wholesalers v Hibbert, and demonstrates how courts assess factors such as employer malice, humiliation suffered, and circumstances of dismissal in determining just and equitable compensation.