When to Seek Compensation for Unfair Dismissals
It is possible to seek compensation for unfair dismissals with the help of experienced labour law attorneys. If you are an employee and suspect that your employer intends to dismiss you, it is imperative that you assess whether the dismissal is for a fair reason and whether the employer is following the correct procedures for dismissal. Note that should you consent to the dismissal, you may lose your right to UIF benefits. If you don’t consent to the dismissal and have not been guilty of misconduct you will have the right to apply for UIF benefits.
When is the dismissal unfair and can you seek compensation?
The Labour Relations Act stipulates situations where the employer is not entitled to dismiss such as for not performing the duties of workers on strike unless not doing so would lead to endangerment of the life, safety and health of another person or when you partake in protected industrial action. The employer may not dismiss you if you are participating in legal proceeding against the said employer and may not dismiss you based on age, unless you have reached the agreed age at which you should retire. You may also not be dismissed for reasons related to your sex, gender, social or race origin, you skin colour, disability, political opinion, family responsibility, marital status, language, culture, belief system or conscience.
Dismissal based on misconduct
Note that if you are guilty of misconduct, the employer has the right to dismiss you, but must still follow the correct procedures. In this instance you need to assess whether the employer has breached a particular procedure rule and whether your particular circumstances and the factors surrounding the misconduct have been considered.
Consider whether the misconduct has happened before. Also consider the procedural correctness of the dismissal in terms of whether a hearing was conducted where you had the chance for stating your case and whether you had reasonable time to prepare for the hearing. Assess whether the employer investigated allegations and notified you regarding the particulars of the allegations. If you had witnesses – assess whether you received enough time to call them and also the opportunity to pose questions to the witnesses of the employer. Review whether the employer notified you of the findings of the investigation and informed you about the right to appeal the decision through the CCMA.
If the employer dismissed you because of health problems, you need to ask to what extent the health problems prevented you from adequately performing in the specific job, how many days you have been absent, the seriousness of the condition, and whether temporary staff could perform the job.
Note that the employer can dismiss you as employee by giving you the required notice and by providing you with the wages in terms of period worked, leave days pay and notice pay. The employer doesn’t need to let you work throughout the notice period and can pay you instead of giving you notice. This payment must include the wages for the hours you have worked in addition to the pay for leave pay outstanding, notice pay for the period you would have worked or, where relevant, payment for accommodation.
The employer is allowed to retrench you as part of a restructuring programme and, in this instance, must pay you severance pay equal to one week’s pay for every full year that you have been employed at the same employer. You should receive the wages for the hours you have worked, in addition to notice pay and leave pay, as well as your severance pay.
You can claim compensation for unfair dismissals through the CCMA if you are a contract worker with a fixed period contract which ended and was not renewed when you had reason to expect renewal of the contract based on previous renewals. If you had to resign because of the actions of the employer leading to an intolerable work environment, you have the right to claim unfair dismissal.
There are circumstances where the dismissal is seen as automatically unfair, giving you the right to compensation for unfair dismissal. Such instances include, being dismissed for participating in a protected strike, being dismissed because you are pregnant, dismissal for not wanting to accept changes in your working conditions and any situation where dismissal is discriminatory in nature.
It is essential to seek legal guidance regarding compensation for unfair dismissal. Get assistance by contacting Allardyce & Partners at reception@www.allardyce.co.za or call 011 234 2125.
NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
