Are you one of many South Africans who has suddenly lost your job and are now facing mounting bills and mouths to feed? Do you feel the dismissal was unfair? You need to know your rights according to the Labour Relations Act (LRA)!
HOW DO I KNOW IF THE DISMISSAL CAN BE CONSIDERED UNFAIR?
Firstly, let’s define the term dismissal. A dismissal differs from a resignation in that, with the former, it is the employer, not the employee, who decides that a term of employment has ended.Grounds for fair dismissals include misconduct, for example theft or damage to property; incapacity to do the job for which you were employed due to poor work performance, ill-health or injury and lastly retrenchment/redundancy.
UNFAIR DISMISSALS
The law is there to protect individuals who experience unfair dismissals, no matter the reason, whether it be due to discrimination; losing your job due to pregnancy or because of participation in a protected strike.
HOW THE ‘FAIRNESS’ OF A DISMISSAL IS DETERMINED
For any dismissal employers should abide by the Code of Good Practice for Dismissals. The Code of Good Practice is an annexure to the Labour Relations Act. The employer must have a good reason for dismissing an employee, which can be substantiated. Legally speaking the ‘fairness’ of a dismissal is considered in two ways – substantive fairness and procedural fairness. Substantive fairness is where we ask “was there a ‘fair’ reason to dismiss the employee?” and “was dismissal appropriate under the circumstances?”. Procedural fairness is about whether the employer followed the correct procedures when dismissing the employee.
Some common scenarios of unfair dismissal according to the LRA
A dismissal without notice, also known as a summary dismissal, can occur when the employee is guilty of serious misconduct but it is still considered unfair procedurally if a disciplinary hearing was not held before the employee was dismissed or if the employer cannot prove that the employee was in fact guilty of misconduct.
A contract employee’s contract is renewed on less favourable terms than expected or not renewed at all, where the employee had a reasonable expectation that it would be renewed as previously.
A mother is refused employment in the company after her maternity leave ends.
A situation where the employer made the working environment for the employee unbearable, leaving the employee with no other option but to resign.
An employee leaves because the new employer who took over the business as a going concern doesn’t pay the employee the same wages or has changed the conditions of employment.
An employee is retrenched but not given the legally prescribed severance package which is at least one week’s remuneration for every completed year worked.
These are just some of the many situations that a judge Presiding Officer can deem unfair.
WHAT DO I DO IF I THINK I HAVE BEEN UNFAIRLY DISMISSED?
Depending on the industry you are in, a dispute would need to be registered with the CCMA or respective bargaining council. Civil litigation through negotiation or through the courts may be required to resolve the issue. Though legal counsel is not mandatory, going to court can be a scary and confusing process and legal assistance can therefore be invaluable.
WHAT COMPENSATION CAN I EXPECT TO GET?
Compensation is at the discretion of the Presiding Officer and based on the merits of the case but it is limited to a maximum of twelve month’s salary for a proven unfair dismissal. In certain instances it is also possible to get your job back.
Remember every employee has the right not to be dismissed unfairly! Let us guide you through the process – we are here to help.