What exactly is a dismissal?
When one person (“employee”) assists or places his/her services at the disposal and control of another person (“employer”) in exchange for remuneration, an employment relationship is formed (for example, money or something else). A contract of employment usually contains the terms and circumstances of that work arrangement.
A dismissal occurs when an employer terminates a contract of employment between an employer and an employee. In other words, against the employee’s will.
The Labour Relations Act (“LRA”) guarantees every employee the right not to be fired unfairly.
This means that an employer cannot simply terminate an employee whenever he or she feels like it; the employer must have a reasonable basis for doing so and must follow a reasonable procedure.
What recourse does an employee have if he or she is fired unfairly?
If an employee believes that his or her dismissal was unfair, he or she must file a grievance with the CCMA or the applicable Bargaining Council within 30 days of the date of dismissal. A form is used to make the referral.
If the employee is out of time, he or she may still refer the issue, but must submit an application for condonation stating the reasons for his or her delay.
An employee may choose to request that his or her employer reinstate him or her on the same terms and conditions as before his or her dismissal.
For the employer to re-employ him/her, possibly on new terms and conditions.
For the employer to compensate him/her (based on the monthly compensation received at the time of the dismissal). Depending on the conditions, the employee may be given compensation of 12 months or less.
However, just because an employee has submitted a dispute to the CCMA does not guarantee that the CCMA would grant the employee’s claim for reinstatement, re-employment, and/or compensation. An employee must demonstrate that there was a dismissal, and the employer must demonstrate that the dismissal was fair (failing which the dismissal will be considered an unfair dismissal). The Commissioner must next decide whether to dismiss or grant the employee’s claim in full or in part.
In South Africa, how much is unjust dismissal compensation?
The maximum sum that can be granted in the case of an unfair dismissal is 12 months’ salary, and the highest amount that can be awarded in the case of an automatically unfair dismissal is 24 months’ salary.
What may an employee do if he or she is fired unfairly?
If an employee’s dismissal is found to be unjust, he or she may be restored, re-employed, or given financial compensation. If the fired employee does not want to be reinstated, he or she is likely to receive compensation.
What constitutes an unjust dismissal?
If you are fired because you are pregnant or on maternity leave, it is always ‘automatically unfair.’ have requested legal rights at work, such as being paid the minimum salary took action in response to a health and safety issue working at a store or a betting business and refusing to work on Sunday
