Unfair Dismissal.
What to do if you have been unfairly dismissed (2021)

Unfair dismissal can be a reality in any business environment, from micro-enterprises to multi-national corporations, which is why it is so crucial for you to know and understand your rights as an employee. If you have been unfairly dismissed, you are protected under South African law and, through a process of conciliation, you will either find yourself reinstated, re-employed or compensated for your terminated employment.

Following a standard procedure in line with the legal protocol will ensure that you are not permanently affected by an unfair dismissal. Below we outline your rights, as well as what you can expect from the process of defending them.

What qualifies as unfair dismissal?
Simply put, you have been unfairly dismissed when your employment contract has been terminated and your employer did not have a sound reason for doing so. This is known as substantive fairness, and has to do with reasons for the dismissal, as well as the evidence provided. It’s important to know that even if your employer did have a valid reason for terminating your employment, unfair dismissal can still be claimed when your dismissal was not handled correctly. This is called procedural fairness, which requires a fair and just hearing before the employee is dismissed. Let’s explore both.

According to the labour Relations Act, the following is considered unfair dismissal:
Your contact is terminated with or without notice. “With notice” means that you are told to leave the workplace after working for the required term set out in the employment contract. ‘Without notice’ means you are told to leave without getting prior notice. This is called summary dismissal and is still procedurally unfair, even if the employee is guilty of a serious offence, as there is no disciplinary hearing involved where the employee can voice their own account.

Your contact was abruptly ended or was not renewed when you had a reasonable expectation that it would be based on past experience, or was renewed to less favourable terms.

A woman who is rejected reinstatement after a period of maternity leave.

You and a number of collogues were collectively dismissed, and one or more among you is offered re-employment but not all of you.

You were forced to leave the workplace due to the working conditions being intolerable on account of the employer:

You were forced to leave the workplace when a new employer took over the business and did not pay the same wages, or changed the conditions of employment.

If you were retrenched, but you did not receive “severance pay”, which is one week’s remuneration for every year that you worked for the company.

What is considered fair dismissal?
Under South African law, there are only three grounds for fair dismissal:
1) Misconduct
2) Incapacity
3) Operational requirements of the business

Unassailable evidence must be provided by the employer to prove that it was not an unfair dismissal. The above reasons form the foundation of substantive fairness. In the case of misconduct, the employee must have contravened a serious rule within the business that they were well informed of upon employment.
Incapacity refers to an inability to meet the standard requirements of their job. You have been unfairly dismissed if your employer cannot supply evidence indicating a) poor work performance b) health or injury that renders you incapable of performing your job or c) disability, to the same measure.

Disciplinary hearing procedure
A disciplinary hearing can be understood through two key aspects: the grounds upon which the employer called the hearing (substantive fairness), and the correct procedure followed in line with the law. Under South African law, there are five basic requirements for every disciplinary hearing. If your employer contravened any one of the following conditions, you have been unfairly dismissed:
1) You have to know precisely what you are being charged for before the hearing.
2) You must be allowed a reasonable time to prepare for the hearing. This is typically 48 hours prior to the hearing.
3) You deserve to be represented either by a colleague or by a trade union        representative.
4) You must be given the opportunity to present your defence during the hearing.
5) The outcome and decision of the hearing must be provided to you in writing along with reasons for the final consensus.

Compensation from the CCMA may be sought if any one of these conditions has not been met.

The Process
If you have been unfairly dismissed on any of the grounds discussed about, you may appeal to the CCMA and a process of conciliation will be set in motion. Conciliation is the first step toward reaching a consensus. It is an informal process, mediated by the commissioner. It is essentially an attempt to reach an agreement with the employee and employer amongst themselves, before resorting to the more legally involved process of arbitration. If the matter is settled in the conciliation room, the commissioner will draw up a settlement agreement, which is binding to both parties.

If on the other hand, the dispute persists and the matter needs to be taken further, arbitration is the next step. During arbitration, a dispute is submitted to an impartial third party, the arbitrator. The arbitrator listens to both accounts. Typically, each side has legal representation, and documents are submitted relevant to their case, which may include the testimonies of witnesses. After careful consideration, the arbitrator
declares the outcome of the process.

Do you need a labour law consultant when settling a dispute related to unfair dismissal?
Simply put, if your employer is legally trained, has a lawyer, an employer organization or their own labour law consultant then so should you. Relying solely on your own capacity to defend yourself will more than likely leave you without a leg to stand on. In many cases, the matter of an unfair dismissal can become overwhelmingly legally complex, and having a labour law consultant to defend you against unfair dismissal will count in you favour immensely.