Legal Advice on Dealing with Unfair Dismissal | LAW FOR ALL Online

With South Africa’s unemployment rate being at a fourteen- year high of 27,7%, many employed workers fear losing their jobs and having to find alternative employment. But, it isn’t that easy to fire an employee.

Every South African worker is protected by strict employment laws, which ensures that they are correctly treated, paid fairly and protected against any form of exploitation by their employers. That said, employees also have to abide by the rules and regulations that companies have in place to create a safe and productive work environment, and if they don’t could risk being dismissed.

When it comes to firing employees, employers and companies also have to follow the law to the letter. There are basic employment rules and procedures that govern the process for a dismissal to be fair and legal.

When is a dismissal unfair?

Being dismissed from a job is potentially unfair and illegal if it’s not based on fair reasons and the procedure set out in the company’s code of conduct, which should be in line with South African employment laws, isn’t followed.

In certain circumstances, a dismissal is automatically unfair. This is where for example an employee is fired because they are pregnant, belong to union, participate in a legal strike or because they are a certain race or have a certain sexual preference etc.

As mentioned above, workers are entitled to procedural fairness (meaning, a proper procedure must be followed) when it comes to a potential dismissal.

• The employee must be informed of the allegations against them. It must be conveyed in writing, in a way and language that is easily understood.
• The employee must also be given a reasonable time to prepare a response to the allegations, and also of where and when a disciplinary hearing will take place.
• At the disciplinary the employee must be given an opportunity to state their case, to present evidence and to question any witnesses.
• Unfortunately, legal representation isn’t usually allowed as it is still an internal matter, but the employee may be represented by colleague or shop steward.
• After the hearing, once a decision has been taken, the employee must be informed of the decision (again preferably in writing) and of any sanction against the employee. If the sanction is dismissal, the employer must give clear reasons why this decision was made.

What steps can be taken if an employee is unfairly dismissed?

Of course, if a dismissal was unjustified, an employee can approach their union for assistance or refer the matter to the CCMA or the Bargaining Council (if applicable). The case must be referred within 30 days of the date of dismissal. If it is referred later, good reasons will have to be provided and the CCMA or Bargaining Council could refuse to assist.

• A dismissed employee who would like to register a dispute at the CCMA needs to complete LRA Form 7.11. These forms can be obtained free of charge from the offices of the CCMA or downloaded from the CCMA website www.ccma.org.za.
• The LRA form 7.11 consists of only five pages and is user-friendly and easy to complete. The form also provides instructions on what steps to follow when referring a dispute. Employees that need clarification on the completion of the form may contact the CCMA for advice.
• Once the referral has been done, the CCMA will confirm a date for conciliation.  Unfortunately, at this stage, No legal representation is allowed at conciliation stage.

The Commissioner will attempt to settle with the employer and employee, failing which a certificate of outcome will be provided to the employee to refer the matter to Arbitration.

At Arbitration stage the employee will be allowed to have legal representation and present evidence and call witnesses.

What happens if the dismissal is deemed unfair?

If a dismissal is found to be unfair, the employee could potentially be reinstated or re-employed, or get compensation money. Reinstatement means the employee gets their job back as if they were never dismissed. Re-employment means the employee gets their job back but starts as they are a new employee.

An employee is more likely to get compensation if:

• They don’t want the job back, and the circumstances surrounding the dismissal would make the relationship between the employee and the employer intolerable
• It is not reasonably practical for the employer to take the employee back.
• The dismissal is unfair basically because the employer failed to follow a fair procedure, but there was a good enough reason for dismissal
• An employee could get up to 12 months’ wages as compensation for unfair dismissal (procedural or substantive unfairness). If the dismissal was automatically unfair, the worker could get up to 24 months’ wages as compensation.

As stipulated, this is a beginner’s guide to unfair dismissal, so it’s always a good idea to do some additional research when dealing with unfair dismissal in the workplace.

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