Have You Been Unfairly Dismissed?
As an employee, you have the right to not be unfairly dismissed. However, it is your responsibility to carefully read your employment contract and study the Labour Relations Act in order to understand your rights. The act applies to every employer and employee in South Africa, regardless of whether you belong to a union or not. It does not, however, apply to you if you are an employee in the South African Secret Service, the Defence Force, or the National Intelligence Agency.
You know that you have been unfairly dismissed if your employer terminated your employment for one of the following reasons:
- Refusing to do the work of another employee who was locked out or involved in a strike, unless your refusal to work endangered the life or health of another person.
- Forced to accept a demand of the employer.
- You intended to, participated in, or supported a protest or strike.
- You were pregnant.
- You were discriminated against based on your race, social origin, ethnic origin, gender, age, disability, belief, culture, marital status, sexual orientation, or family responsibility.
- Your intention to take action against your employer by exercising one of your rights as an employee.
- Taking action against your employer in exercising one of your employee rights.
- Alleged misconduct or inability to perform your work without proof of such.
- Your employer followed incorrect procedure for a proper dismissal.
What Next If You Have Been Unfairly Dismissed?
You have the right to refer the matter to the CCMA or the relevant bargaining council for dispute resolution. Keep in mind that you must do so within 30 days from the date of your dismissal. The CCMA will require you to complete a form and provide the necessary details regarding the dispute and what type of relief you will require. The relief can take the form of reinstatement or compensation. You must deliver the form to the CCMA and ensure that the employer also receives a copy.
You can do so without the help of an attorney, but it is recommended that you seek legal guidance regarding the procedure and wording to help minimise the risk of not getting the required compensation because of incorrect procedure or wording.
What Will Follow?
The CCMA will schedule an informal hearing between you and your employer in order to see if it is possible to settle the matter. This is the conciliation process. However, if it is not possible to reach a settlement, you will receive a certificate to the effect. The matter of unfair dismissal is then referred for arbitration, which is handled by the Labour Court. You will definitely want legal help at this stage.
You will both get the opportunity to state your sides of the story, but note that at this stage, it will be a rather formal process. You will need to submit evidence in support of your claim for being unfairly dismissed. The employer will also need to submit evidence to the contrary and you will both be able to call witnesses. Based on the evidence and witness testimonies, the arbitrator will make a decision on the outcome of the dispute. This will be done within 14 days and you will both be notified about the outcome.
Which Form to Complete?
You must complete the LRA Form 7.11, which can be downloaded from the CCMA’s website or collected at the nearest CCMA office. You can also obtain it from your attorney who will help you to correctly complete the form.
What Happens If You Do Not Refer the Dispute within the Allowable Period?
You will need to apply for condonation if you still want the CCMA to consider your claim for being unfairly dismissed. In so doing, you will need to provide valid reasons for not referring the dispute within the allowable period, and will need to explain why you believe that you have been unfairly dismissed. The commissioner will consider your application and make a decision about whether or not to allow the dispute to be referred.
Where to Get Help?
Avoid mistakes in referring the claim for being unfairly dismissed by making use of our legal help in this regard. Call our labour lawyers at 011 234 2125 for professional assistance.
Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – September 2018.
