UNFAIR DISMISSAL LAWYERS IN SOUTH AFRICA
WHAT IS UNFAIR DISMISSAL?
Unfair dismissal, a crucial concept in South African labour law, refers to the termination of employment without a valid, lawful reason, without following a fair procedure, or both. Understanding this concept empowers you to protect your rights as an employee. The concept of ‘fairness’ is distinctive to labour law and encompasses a broader range of considerations, including procedural and substantive fairness. For instance, if an employee is fired for refusing to work overtime without compensation, that could be considered unfair dismissal. Lawfulness, however, is more limited, focusing on established contract principles and statutory interpretation rules.
WHAT QUALIFIES AS UNFAIR DISMISSAL IN SOUTH AFRICA?
The fairness of a dismissal is evaluated based on two aspects: substantive fairness and procedural fairness. According to the Labour Relations Act 66 of 1995 in South Africa, a dismissal is deemed unfair if it infringes on the employee’s fundamental rights, such as those related to gender, race, or ethnicity, when such infringement is unjustifiable.
South African labour laws are designed to protect employees from unfair treatment. Employers are strictly prohibited from dismissing employees for exercising their statutory employment rights. These rights include participating in lawful strikes or protests, exercising freedom of association (such as trade union activities), or any other rights protected under applicable labour laws. This protection ensures that your rights as an employee are respected and valued.
Even in cases where a dismissal is based on the employer’s operational requirements and follows the correct procedure, it may still be considered unfair if the procedure was not correctly followed. This provision ensures that even if the procedure is not correctly followed, you still have a chance to seek justice. This reassurance instills a sense of hope and confidence, knowing that your rights are protected.
HOW TO PROVE UNFAIR DISMISSAL?
Section 192 of the Labour Relations Act (LRA) outlines the burden of proof in dismissal cases. According to subsection (1), “In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.” Subsection (2) adds, “If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”
The CCMA (Commission for Conciliation, Mediation and Arbitration) Code of Good Practice sets out the essential elements for determining substantive fairness. The CCMA is an independent dispute resolution body that helps to resolve workplace disputes. An employer must prove all the elements to succeed in a case of alleged unfair dismissal for misconduct. It will be an unfair dismissal if the employer fails to prove any one of the elements.
HOW TO DEAL WITH UNFAIR DISMISSAL IN SOUTH AFRICA?
If you believe your dismissal was unfair or that your employer did not follow the correct procedure, you can challenge it. This process can be daunting, so it is advisable to seek proper and professional advice before proceeding. Our expert labour law team at Burger Huyser Attorneys will assist you with your matter and ensure that the necessary procedures of redress are taken.Â
If an employee believes they have been unfairly dismissed, they need to take specific steps to address the issue:
1. REFER TO CCMA OR BARGAINING COUNCIL
The employee must refer the dispute to the Commission for Conciliation, Mediation, and Arbitration (CCMA) or the relevant Bargaining Council within 30 days from the date of dismissal. This is done by completing and submitting a referral form.
2. APPLY FOR CONDONATION
If the referral is made after the 30-day period, the employee can still refer the dispute but must apply for condonation, providing reasons for the delay.
3. REQUEST A CLAIM
- Reinstatement: The employee may request to be reinstated to their former position with the same terms and conditions.
- Re-employment: The employee may request re-employment, potentially under new terms and conditions.
- Compensation: The employee may seek compensation, which can be up to 12 months’ salary, depending on the circumstances surrounding the dismissal.
4. FOLLOW CCMA PROCEEDINGS
Submitting a dispute to the CCMA does not guarantee that the employee’s claim will be granted. The employee must prove that a dismissal occurred, and the employer must demonstrate that the dismissal was fair. If the employer fails to do so, the dismissal may be deemed unfair. A Commissioner will then decide whether to dismiss the employee’s claim or grant it in full or part.
*The best way to determine whether your dismissal was unfair is with the help of our labour law specialists at Burger Huyser Attorneys. If you need any guidance regarding labour law in South Africa and workplace disputes book a consult with one of our expert unfair dismissal lawyers.
NEED TO CONSULT WITH EXPERT LABOUR LAWYERS IN SOUTH AFRICA? CONTACT OUR LABOUR LAW ATTORNEYS TODAY
Contact a labour law attorney at Burger Huyser Attorneys today as we have gained vast experience with these matters over the years. We pride ourselves on delivering and sharing our experience, passion and integrity to your advantage.
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NEED TO CONSULT WITH EXPERT LABOUR LAWYERS IN SOUTH AFRICA? CONTACT OUR LABOUR LAW ATTORNEYS TODAY
Contact a labour law attorney at Burger Huyser Attorneys today as we have gained vast experience with these matters over the years. We pride ourselves on delivering and sharing our experience, passion and integrity to your advantage.
For your convenience, our service offering also includes Labour Lawyers In Alberton, Labour Lawyers In Randburg, Labour Lawyers In Sandton, Labour Lawyers In Roodepoort, Labour Lawyers In Bedfordview, Labour Lawyers In Centurion & Labour Lawyers In Lynnwood Pretoria.
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