What Constitutes the Unfair Dismissal of an Employee – Know Your Rights!
Have you just been unfairly dismissed or retrenched without a disciplinary procedure or retrenchment package? Did you know that if you’re dismissed without doing anything wrong, or even if you’re dismissed for fair gross misconduct without the proper procedure being followed, you could be entitled to up to 24 months of compensation? That’s right. Today, employers need to be attentive about the way that they treat their employees. Employees have rights and South Africa’s constitution goes far in guaranteeing that these rights are met.
Today, every employee is entitled to fair labour practices, so much so that the LRA has a Code of Good Practice for dismissals which employers must adhere to. If they don’t, they can find themselves at the CCMA headquarters paying enormous sums of money to unfairly dismissed employees. But before we get into compensation, we’re going take a look at unfair dismissals and what constitutes unfair dismissals.
Many dismissed employees are often left wondering if their dismissal was unfair. The truth is that if you’re not knowledgeable about labour law, then it’s easy to be exploited – it happens all the time in South Africa. Even though employers are aware of the LRA Code of Practice for dismissals, many employers take chances, which is why it is so important to know your rights. Losing a job today is tough and can affect your entire family financially, and this is why it is of vital importance to know your rights and what your options are, should you find yourself in this situation.
So what constitutes an unfair dismissal of an employee? The “fairness” of a dismissal is decided in two ways – substantive fairness and procedural fairness. What this means is that when an employee is dismissed, the employer must determine whether the dismissal was fair. The employee must have a fair reason, such as incapacity, redundancy or misconduct. Once a reason is ascertained, the employer must follow the correct procedure and ensure that the employee has the right to a fair hearing before the actual dismissal. While misconduct, incapacity and retrenchment are grounds for fair dismissal if proven to be substantive and procedural, an unfair dismissal of an employee according to our Labour Relations Act is any of the following acts by an employer:
- An employer terminates a contract of employment without giving notice.
- A contract employee whose fixed-term contract is suddenly ended or renewed on less favourable terms, or not renewed where the employee had a reasonable expectation that the contract would be renewed because it had often been renewed previously.
- A woman who is refused placement into her position after her maternity leave.
- An employer dismisses a number of employees for some reason and offers to re-employ one or some of the dismissed employees, but not all of them.
- An employee who was forced to leave their job because the employer made the working environment unbearable or intolerable.
- The employee leaves work because a new employer has taken over the business and is not paying the employee the same wages or has changed the conditions of employment.
- Employees are dismissed for operational reasons without severance pay of at least one week’s remuneration for every full year that the employee worked for that employer.
What is the Compensation of an Unfair Dismissal in South Africa?
If you’ve been unfairly dismissed, then the Labour Relations Act sets out limitations to the amount of compensation you can expect to receive. Highly dependent on whether the dismissal was substantive or procedural – section 194 of the LRA prescribes that if an employee’s dismissal is found to be procedurally or substantively unfair, then the employee may be awarded anything from 12 months to 24 months of compensation.
If you’ve been unfairly dismissed and are in need of urgent assistance, then contact us at Allardyce & Partners. In defence of the distressed, we boast a formidable reputation complemented by the backing of an exceptional team of attorneys and paralegals. Offering FREE legal consultation for exploited, unfairly dismissed or victimised employees, we also offer a “No Win No Fee” approach to employees.
For more information about our specialised services and rates, contact us at reception@www.allardyce.co.za or on 011 234 2125 today.
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.
