In South Africa, every worker is protected by employment laws to ensure all employees are treated fairly and not exploited by their employers. Employees must keep to the rules and policies the company have in place to ensure a safe and productive work environment. Not abiding by these rules, could have them dismissed.
When it comes to firing employees, companies and employers must follow the law. For a dismissal to be fair and legal, basic employment rules and procedures must be followed.
What is an unfair dismissal?
If a dismissal did not follow the procedure set out in the company’s code of conduct and the South African employment laws, was without fair reasons, the dismissal is deemed as unfair. In certain situations, like fired for being pregnant, the dismissal is automatically deemed unfair. An employee cannot be fired because they are a certain race, belong to a union, participate in a legal strike, or have a certain sexual preference.
Before an employer can fire an employee, the proper procedure must be followed by the company to ensure fairness. The employee must be informed in writing of the accusations against them in a way and language they understand. The employer must give the employee a reasonable time to response to the allegations and notify them when the disciplinary hearing will take place. At the disciplinary hearing, the employee must have the opportunity to defend their case. After the hearing, the employer must inform the employee of their decision in writing.
How to appeal unfair dismissal
If an employee feel that they have been unfairly dismissed, they can appeal the decision by referring the matter to their union or the CCMA. The employee has 30 days, from date of dismissal, to refer their case. The dismissed employee can obtain the necessary form (LRA Form 7.11) needed to register a dispute, free of charge from the CCMA office or download it from their website. This form is easy to complete and give instructions on what to do when referring a dispute.
The CCMA will confirm a date for conciliation once the referral has been done. The Commissioner will try and settle the matter between employee and employer. If this fails, the Commissioner will provide the employee with a certificate of outcome. The employee can then refer the matter to Arbitration if they want to. At the Arbitration, the employee can have legal representation, present evidence, and call witnesses.
Outcome if dismissal is deemed unfair
If it was found that the dismissal was unfair, the employee may be reinstated, re-employed, or get compensation. In most cases, compensation is paid to the employee as the employee or employer is not willing to continue the work relationship. In the case of unfair dismissal due to procedural or substantive unfairness, the employee may get up to 12 months’ wages as compensation. When it was deemed an unfair dismissal due to pregnancy, racism or sexism, the employee is entitled to up to 24 months’ wages as compensation.