7 Steps to Deal with Unfair Dismissal

Dealing with unfair dismissal can be a stressful and complex process. However, by following these seven steps, you can effectively navigate the situation and seek justice.

These steps are guided by South African labor laws, particularly the Labour Relations Act (LRA).

1. Understand Your Rights

The first step is to understand your rights under the Labour Relations Act (LRA). According to the LRA, an employer must have a fair reason for dismissing an employee and must follow a fair procedure. Unfair dismissal can occur if the employer fails to provide a valid reason or does not follow proper procedures, such as conducting a fair hearing. Understanding these rights helps you identify whether your dismissal was indeed unfair.

2. Request a Written Explanation

Immediately after being dismissed, request a written explanation from your employer detailing the reasons for your dismissal. This document can be crucial evidence if you decide to take legal action. For example, if the dismissal was sudden and without warning, a written explanation can help you understand the alleged reasons and prepare your case.

3. Gather Evidence

Collect all relevant evidence that can support your claim of unfair dismissal. This includes employment contracts, performance reviews, emails, letters, and any other communications between you and your employer. Witness statements from colleagues can also be valuable. For example, if you were dismissed for alleged misconduct, gather evidence that disproves these allegations.

4. Attempt to Resolve Internally

Before escalating the matter, try to resolve the issue internally by appealing the dismissal through the company’s grievance procedures. This shows that you have made an effort to address the issue amicably. Some employees find that internal resolutions are quicker and less stressful than legal action.

5. File a Complaint with the CCMA

If internal resolution attempts fail, file a complaint with the Commission for Conciliation, Mediation, and Arbitration (CCMA). The CCMA provides a platform for resolving disputes between employers and employees. You need to lodge the complaint within 30 days of the dismissal. The CCMA will first attempt to mediate the dispute through conciliation. If you believe your dismissal was unfair, this step is crucial in seeking justice.

6. Attend the CCMA Conciliation and Arbitration

Participate actively in the conciliation and, if necessary, arbitration processes at the CCMA. Conciliation aims to settle the dispute amicably, while arbitration results in a binding decision. Present all your evidence, call witnesses if necessary, and make a strong case. For example, if the employer fails to prove their case, the arbitrator may rule in your favor, potentially leading to compensation or reinstatement.

7. Comply with or Challenge the Outcome

Once the CCMA makes a decision, both parties must comply with the outcome. If the decision is in your favor and the employer does not comply, you can have the award certified as an order of the Labour Court, making it enforceable. If the outcome is not in your favor and you believe it was unjust, you have the right to challenge the decision by applying for a review at the Labour Court. However, challenging a CCMA decision can be complex and may require legal assistance.

By following these steps, you can effectively manage an unfair dismissal situation and seek a fair resolution. It’s crucial to act promptly and be well-prepared at each stage, using the legal frameworks available to protect your rights as an employee.

FAQs

How Much Compensation Will I Get for Unfair Dismissal in South Africa?

In South Africa, compensation for unfair dismissal can be up to 12 months’ salary for ordinary unfair dismissals and up to 24 months’ salary for automatically unfair dismissals.

The amount of compensation awarded depends on various factors, including the circumstances of the dismissal and the employee’s length of service. The Compensation for Occupational Injuries and Diseases Act (COIDA) and the Labour Relations Act (LRA) guide these awards, ensuring fairness in the process. Employees who believe they have been unfairly dismissed can approach the Commission for Conciliation, Mediation, and Arbitration (CCMA) or the Labour Court for assistance.

• Ordinary Unfair Dismissals: Up to 12 months’ salary
• Automatically Unfair Dismissals: Up to 24 months’ salary

Automatically Unfair Dismissal Examples

Automatically unfair dismissals in South Africa occur when an employer terminates an employee for reasons that are considered inherently unfair by law. Some examples include:

1. Discrimination: Dismissal based on race, gender, age, disability, religion, or any other form of discrimination.
2. Pregnancy: Termination of employment due to the employee’s pregnancy, intended pregnancy, or any reason related to childbirth.
3. Union Activities: Dismissal due to participation in union activities or membership.
4. Whistleblowing: Termination for reporting or intending to report employer’s illegal activities or breaches of workplace regulations.
5. Exercising Rights: Dismissal for exercising any rights conferred by the Labour Relations Act or the Basic Conditions of Employment Act.

How to Prove Unfair Dismissal

To prove unfair dismissal, an employee must demonstrate that the termination of their employment was without just cause and did not follow fair procedures. Steps to prove unfair dismissal include:

1. Documentation: Keep all relevant documents such as employment contracts, termination letters, and any written communication with the employer regarding the dismissal.
2. Witness Statements: Gather statements from colleagues or other witnesses who can testify to the events leading up to the dismissal.
3. Policy and Procedure Breaches: Show that the employer did not follow proper disciplinary procedures as outlined in the company’s policies or the Labour Relations Act.
4. Evidence of Discrimination or Retaliation: Provide evidence that the dismissal was based on discriminatory practices or retaliation for exercising legal rights.

Employees can file a claim with the CCMA or Labour Court, where they will need to present their evidence to prove the unfair nature of their dismissal.

• Maintain records of all interactions and documents related to the dismissal
• Seek legal advice to ensure proper presentation of the case

By following these steps, an employee can build a strong case to prove that their dismissal was unfair and seek appropriate compensation.

How Does CCMA Prove Unfair Dismissal?

The Commission for Conciliation, Mediation, and Arbitration (CCMA) in South Africa proves unfair dismissal by evaluating evidence and ensuring that the dismissal was both substantively and procedurally fair. Here’s how the process typically works:

1. Conciliation: The CCMA first attempts to resolve the dispute through conciliation, where both parties discuss the issues and seek a mutually acceptable solution.
2. Arbitration: If conciliation fails, the matter proceeds to arbitration. During arbitration, both the employee and the employer present their evidence and arguments.
3. Evaluation of Substantive Fairness: The CCMA checks if there was a valid reason for the dismissal, such as misconduct, incapacity, or operational requirements. The employer must show that the reason for dismissal was fair and justified.
4. Evaluation of Procedural Fairness: The CCMA examines if the employer followed proper procedures, including conducting a fair hearing before the dismissal and giving the employee an opportunity to respond to allegations.
5. Decision and Award: After considering all evidence and arguments, the arbitrator makes a decision. If the dismissal is found to be unfair, the arbitrator can order remedies such as reinstatement, re-employment, or compensation.

Evidence and thorough documentation are crucial in this process. Employees must provide proof of unfair treatment, while employers must demonstrate adherence to fair practices.

• Proper documentation and witness testimonies are critical
• Employers must show that they followed due process and had a fair reason for dismissal

Grounds for Immediate Dismissal in South Africa

Immediate dismissal in South Africa, also known as summary dismissal, is reserved for serious misconduct. Grounds for immediate dismissal include:

1. Gross Misconduct: Actions that severely violate workplace policies, such as theft, fraud, physical violence, or gross dishonesty.
2. Gross Negligence: Severe carelessness that results in significant harm or risk to the employer’s business or reputation.
3. Willful Damage to Property: Deliberately damaging company property or causing significant financial loss.
4. Breach of Trust: Actions that destroy the trust relationship between employer and employee, such as serious breaches of confidentiality.
5. Substance Abuse: Being under the influence of drugs or alcohol at work, especially if it endangers safety or affects performance.

These actions are considered sufficiently serious to justify immediate dismissal without notice, provided that the employer conducts a fair investigation and hearing.

• Gross misconduct like theft or violence can lead to immediate dismissal
• Proper procedures must still be followed to ensure fairness

How Long Does an Employer Have to Pay You After Being Fired in South Africa?

In South Africa, an employer is required to pay an employee all due wages and benefits within seven days after termination of employment.

This includes the employee’s final salary, any outstanding leave pay, severance pay if applicable, and any other amounts owed. It’s important for employers to settle these payments promptly to comply with the Basic Conditions of Employment Act (BCEA).

• Final payment must be made within seven days of termination
• Includes final salary, outstanding leave, and severance pay

Employers who fail to comply with these payment obligations can face legal action from the employee, who may seek assistance from the Department of Labour or the CCMA to resolve the issue.