Did You Know Legal Help for Unfair Dismissals Is Available?
Have you been dismissed? Did you know that you can get legal help for unfair dismissal issues in South Africa? Even though you cannot have legal representation at the conciliation stage, if the issue is referred to the CCMA, you are allowed such at the arbitration stage. You can also initiate further action against an employer if you are not satisfied without the outcome of the CCMA proceedings.
The labour laws of South Africa protect employees against unfair dismissals. An employer must follow fair procedures in terminating the employment contract and must do so for a fair and valid reason. Some instances of employment contract terminations are automatically unfair dismissals. This is why we recommend seeking legal help regarding the procedures to follow for reinstatement in your position or for compensation.
The Labour Relations Act of South Africa regulates such disputes. If you do not want reinstatement because the circumstances of the termination were of such a nature that the employment relationship would be intolerable if you were to be reinstated, you can seek compensation. The Labour Relations Act Section 194 stipulates that if a dismissal is procedurally unfair, you are entitled to 12 months’ compensation. In the event of the termination of employment qualifying as automatically unfair, you can receive up to 24 months’ compensation. The compensation is equal to the remuneration you received at the time when the employment contract was terminated.
The CCMA and the labour courts do not generally award the maximum amount and as such, it is important to seek legal help to ensure that you receive as much as possible.
It is also recommended to seek legal guidance to help you determine whether the employment termination was procedurally correct and substantively fair. The employment termination is automatically unfair if the dismissal is for any of the reasons below:
- Employee participation in a protected strike or protest.
- Employee support of a protected strike or protest.
- Employee intention to participate or support a protected protest or strike.
- Protected disclosure by an employee according to the terms of the Protected Disclosure Act of 2000 regarding criminal activities of an employer or non-compliance with legislative requirements, which can endanger the environment or safety of people.
- Termination of employment to force an employee to accept a demand of mutual interest to both parties.
- An intention of the employee or action by the employee against the employer according to the LRA rights awarded to the employee.
- Termination of employment because of a business transfer.
- The intention of the employee to become pregnant or any reason related to the pregnancy of the employee.
- Discrimination against the employee based on any grounds, such as political opinion, race, gender, disability, language, culture, marital status, age, religion, family responsibility, social origin, sexual orientation, belief, ethnic origin, or conscience.
The employer must have a fair and valid reason for the termination of employment and must follow the correct procedure in terminating the employment. For one, the employer must inform the employee of any allegations against the employee and this must be done in writing and in an understandable language. The employee must be given the opportunity to respond to such allegations and must receive reasonable time to prepare for a disciplinary hearing. The employer must inform the employee when and where the disciplinary hearing is to take place. The employee must have the opportunity to question witnesses. All the correct procedures must be followed before, during, and after the disciplinary hearing. The reason for dismissal must be fair.
If you have been dismissed and you believe that it was unfair, seek legal help today to ensure that you are reinstated or compensated. Our attorneys are here to help you with advice and representation where relevant.
*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.
