FAIR AND UNFAIR DISMISSALS AND YOUR RIGHT TO RECOURSE

 

A dismissal occurs when an employee is retrenched, given notice of termination of employment, or given payment against the mandatory notice period.

 

A dismissal can be fair, unfair, or automatically unfair, and the Labour Relations Act, 66 of 1995, (“the Act”), protects employees against unfair dismissals.

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The fairness of a dismissal is based on two aspects: substantive and procedural fairness. Substantive fairness means that the reason for dismissal was fair and appropriate. For example, the employee did not comply with rules that s/he knew or is expected to have known. Procedural Fairness essentially asks if fair procedure was followed prior to the dismissal.

 

Unfair dismissals occur, for example, when the termination of employment is due to the employer not affording the employee the right to fair procedure or reasons for the dismissal.

 

In terms of Section 187 of the Act, there are instances where the reason for dismissal is regarded as automatically unfair. For example: an employee who refuses to do the work of a colleague on strike and who is fired for that refusal, or for reasons based on race, gender, sex, ethnic origin, age, disability,
religion, and pregnancy.

To seek relief by either claiming for compensation, re-employment, or reinstatement, an employee, or their legal representative, must:

• Refer a dispute to the CCMA, within 30 days from the date of dismissal, by completing and submitting a referral form.

• Should the dispute not be referred within 30 days, the employee will have to do an application to condone the late referral, prior to being able to proceed with the dismissal.

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For more information on The Next Steps, click here. 

 

Should you find yourself in the unfair situation described above, kindly contact our offices for assistance on 011 - 646 8411

Mayuri Maharajh