4 Steps to Dealing with Unfair Dismissal

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With South Africa’s unemployment rate reaching an all-time high of 34,3%, many employees are worried about losing their jobs and having to find other means of income.  However, it is not as simple to dismiss an employee.

Every employee is protected by employment laws and regulations. This guarantees that all employees are fair in the workplace.

What will an employee’s recourse be if he/she is unfairly dismissed? Higgs Attorneys have compiled a list of 4 steps to take when dealing with unfair dismissal:

Step 1: Challenge the Dismissal

If an employee believes that their dismissal was unfair or that the employer did not follow the correct procedure, the employee can challenge the dismissal. This can be a daunting process to embark on. It is always advised to seek proper and professional advice when challenging your employer.

Step 2: Refer the Dispute with the CCMA

A dismissed employee who wishes to refer an unfair dismissal dispute to the CCMA must complete an LRA (Labour Relations Act 1995) Form 7.11. These forms are available for free at the CCMA’s offices or can be downloaded from the CCMA’s website.

The LRA form 7.11 is only five pages long and is easy to complete. The form also includes directions on how to proceed when referring a dispute. The CCMA will provide a date for conciliation after the referral has been lodged. Unfortunately, no legal assistance is allowed during the conciliation process.

Step 3: Know Your Rights

The LRA allows an employer to dismiss an employee for the following reasons:

  • Misconduct by the employee, such as theft, being absent without approval, or disobeying the employer’s instructions are all grounds for fair dismissal.
  • Retrenchment is also a fair dismissal. Retrenchments are based on the operational requirements of the employer. This includes financial constraints.
  • Incapacity, when an employee can no longer perform his duties.

Step 4: Remedy

If a dismissal is determined to be unfair, the employee may be reinstated, re-employed, or receive financial compensation.

The dismissed employee is likely to receive compensation if:

  • The employee does not wish to be reinstated.
  • The circumstances regarding the dismissal would make the employee-employer relationship intolerable.
  • The employer did not follow the correct procedure.

Unfair Dismissal in South Africa

The best way to determine whether your dismissal was unfair is with the help of labour law specialists. If you need any guidance regarding labour law and workplace disputes contact Higgs Attorneys.

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