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What happens when you're unfairly dismissed?
Author: Tammy February
Published: 02/05/2017

So you've been fired and you think the grounds on which you've been dismissed are grossly unfair. What do you do?

Getting fired is something you never want to experience. Getting fired when you didn't deserve it is even worse.

Thankfully, there are labour law guides that are in place to protect your rights as an employee in the workplace. So if you feel that you've been maligned and unfairly treated, here's a handy guideline that will hopefully help you to navigate the complex process that could help to vindicate you.

But first, let's look at the three main forms of dismissal:  

Misconduct

This is where an employee is found guilty of committing an act that goes directly against company policy. This could, according to labourguide.co.za, include theft, knowingly endangering the lives of fellow employees, deliberately damaging or defacing property and being involved in a physical altercation with an employer or fellow employee.

Do note that there needs to be proper procedures in place and solid and incontestable proof of offences committed before the employee is dismissed.

Incapacity

This refers to an employee who is consistently unable to meet the requirements of the job. It also applies if you're unable to perform due to sickness. However, if you are suffering from a long-term illness, they won't be able to summarily dismiss you.

Labourguide.co.za says that in addition to the nature of your illness, what also needs to be taken into account is the length you've been with the company, whether the illness is something you'll be able to from and how the duration of your absence during your absence is affecting the production rate of company.

Retrenchment 

This is not so much a case of being fired, but more a process that happens when companies reduce their headcount for operational purposes.

According to polity.org, it's also called no-fault dismissals because the termination isn't due to any failings of the employee but because it's based on the structural, economic, technological and operational needs of the company.

That said, there are times that legal assistance might be required, especially when there's been no proper procedure that's been followed and depending on whether or not any effort was made into avoiding retrenchment at all costs.

So, now that you have a basic idea of what constitutes dismissal – what do you do if you feel that you were being unfairly maligned, fired without cause or forced into leaving?

We've chatted to Karel van der Molen, attorney and HR practitioner and he says, "The Constitution of the Republic of South Africa, 1996 and the Labour Relations Act, 1995 (LRA) state very clearly that every worker is entitled to fair labour practices."

That includes being dismissed on a basis that isn't rooted in any form of discrimination or is based on unfair treatment in terms of actions taken against you.   

Karel provides us with some insights and guidelines on how best to approach being dismissed unfairly.

These include being fired without proper notice, being discriminated against based on your race, religion, gender or sexuality, making a mistake and being dismissed without going through a proper disciplinary hearing first or even being told not to return after you've been on maternity leave.

Step 1:  Make sure you have proof

"As the aggrieved employee, make sure you have all the necessary facts and details on hand if a dispute should arise at a later stage.

"Retain copies of e-mails and letters and makes and keep written notes of meetings and telephone conversations with managers and supervisors. These could be crucial should there be a dispute at a later stage."

Try to find someone at work who will be a character witness for you, in the event that your case becomes acrimonious. Also, don't keep emails on your work server – forward it on to another e-mail since some companies have email retention policies, which means you could lose your e-mails after a certain amount of days, so always make back-ups of everything that could help you with your case.

Step 2: Get HR involved

Before going any further, approach your human resources department. You can't be summarily dismissed without proper procedure being followed, so if you feel that your rights are being violated, make sure that you take up with HR before going a step further.

Karel adds that it's also vital to "obtain a copy of the LRA and more especially Schedule 8 of the Act which is the Code of Good Practice on Dismissal. The Code sets out in detail the key issues and aspects that must be considered in the case of fair or unfair dismissals."

So, if you're armed with that knowledge and have exhausted all internal processes involved, you can then move on to the next step and take your case to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Step 3: CCMA

If you're unable to reach a resolution, you need to submit your case to the CCMA within a period of 30 days following the date of your dismissal.

According to Labourguide.co.za, you also need to fill in a case referral form, which you can find here. A copy of this needs to be sent to your employee and should, Karel says, include "details of the alleged dispute (having the dates, etc. of the correspondence and other notes will also stand you in good stead)."

The abovementioned form also states that you're required send proof of you submitting the served papers to your employer. This could be in the form of signed delivery, or a post office slip (if you're not hand-delivering).

When you submit the form, a commissioner will be appointed and will provide you and the party involved with a date, time and venue for your hearing during which an attempt to reach an agreement will be made.

At this stage you're generally not allowed to have legal representation yet.

If no accord or conciliation is reached, you'll then have to fill out an arbitration form, which you can find here. In this case legal representation is allowed and here's where your documents and evidence will come into play (the same goes for the employer) and you will be given the opportunity to cross-examine your employer's witnesses and vice versa.

Articel source http://www.w24.co.za/Work/Legal/what-happens-when-youre-unfairly-dismissed-20170426