Unfairly dismissed?

The law is very clear on when dismissal is considered unfair. What can you do about it?

South Africa’s Labour Relations Act (LRA), like all of our legislation post-1994, aims to protect the rights of all parties, ensuring no discrimination or bias and maintaining a balance of power between stakeholders. Workers’ dignity and rights, so often abused or ignored during apartheid, are safeguarded. But employers’ needs are also recognised, alongside their responsibilities. There are some who feel workers’ rights are so inviolable that employers have little room for manoeuvre even when an employee is underperforming. In fact, there are fair processes in place to manage underperformance, but some employers disregard procedure and simply dismiss employees they want rid of. Sometimes, when budget cuts mean headcount must be reduced, an employer will summarily dismiss a number of employees rather than going through the lengthy (and admittedly tedious) process of a Section 189 retrenchment. But unless an employer has a just cause for the dismissal, it is automatically unfair. If this happens to you, what are your rights?

Automatically unfair dismissal

An automatically unfair dismissal, as defined under section 187 of the Labour Relations Act 66 of 1995, is distinct from an ordinary dismissal, which typically occurs due to reasons concerning an employee’s conduct, capacity, or the operational needs of the employer.

A dismissal is considered automatically unfair if the reason behind it falls into a category deemed by law to be egregious. Employees are entitled to protection against unfair dismissal; employers can only terminate their employment for reasons recognised by law (substantive fairness) and following a fair process (procedural fairness).

Reasons for classing a dismissal as unfair

Unfair dismissal often stems from the violation of fundamental rights. For example, the Constitution guarantees freedom of association under section 23. Dismissals resulting from the infringement of this right are considered automatically unfair. Similarly, the right to strike is protected, and a dismissal arising from participation in a legally compliant strike constitutes an automatically unfair dismissal.

Some of the reasons for classing a dismissal as automatically unfair include:

• Exercising a right granted under the LRA
• Participating in proceedings governed by the LRA
• Engaging in or supporting a protected strike or protest action compliant with the LRA
• Refusing to perform work typically done by employees on strike, unless such work is crucial for immediate safety concerns
• Rejecting an employer’s demand related to mutual interests, such as pay reductions
• Pregnancy or any pregnancy-related issues
• Affiliation with or involvement in lawful trade union activities
• Direct or indirect discrimination based on various grounds, including race, gender, age, disability, etc.
• Transfers related to business transfers or insolvency as outlined in the LRA
• Making a protected disclosure under the Protected Disclosures Act, 2000

Terminating an employee’s services upon reaching the normal or agreed retirement age is not inherently unfair. In such cases, the burden lies with the employer to demonstrate that the age in question corresponds to the normal or agreed retirement age.

What to do in the event of unfair dismissal

If you have been dismissed and you have reason to think the dismissal is unfair, you can challenge the dismissal by registering a dispute with the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA is an independent, statutory body established under the LRA, whose purpose is to conciliate workplace disputes and arbitrate certain categories of disputes that remain unresolved after conciliation. It has other responsibilities as well but these are its core activities. Depending on the industry you work in, you may be advised to take your dispute to the bargaining council for your industry, if there is one. The CCMA can advise on the appropriate channel for your matter.

CCMA and legal advice

You may seek the support of a legal practitioner to register your dispute with the CCMA, but it is not required. Anyone can register a dispute, and there is no fee to do so. A labour lawyer may complete and submit the forms on your behalf, but this will not influence the result or speed up the process. The CCMA lacks the authority to arbitrate disputes involving alleged automatically unfair dismissals unless both you and your employer consent to arbitration by the CCMA in writing.

Compensation or reinstatement?

If your dismissal is found to be unfair, you will be able to be reinstated or re-employed, or receive financial compensation. Reinstatement means you get your job back as if you were never dismissed. Re-employment means you go back to your job but a new worker. However, the process of raising a dispute with the CCMA can often sour your relationship with your employer beyond repair. It may be unpleasant for you both to work together again, depending on the size of the organisation and how much direct contact you have with the individual responsible for your dismissal. You may also feel your employer will subtly make your life so unpleasant that you will resign, thus they achieve the goal of letting you go without the cost of retrenchment or compensation. In this case you can opt for compensation.

Compensation is likely to be awarded if:

• You do not want the job back
• The circumstances surrounding the dismissal would make the relationship between you and your employer intolerable
• it is not reasonably practical for the employer to take you back
• The dismissal is unfair merely because the employer failed to comply with a fair procedure, but there was a good reason for dismissal

You may receive up to 12 months’ wages as compensation for an unfair dismissal (procedural or substantive unfairness). Compensation for an unfair labour practice claim is limited to 12 months’ remuneration. If it was an automatically unfair dismissal you could get up to 24 months’ wages as compensation.

If your dispute is not resolved

If your dispute over an automatically unfair dismissal is not unresolved after conciliation by the CCMA or a bargaining council, you have the option to escalate the matter to the Labour Court for adjudication. Your case may also first be referred to arbitration. If the court finds the dismissal unfair, it may award you compensation of up to 24 months’ remuneration.

Legal advice

You do not need a lawyer to register a dispute with the CCMA, and the CCMA will also provide advice on the nature of your dispute, for example if you are not sure if the dismissal was automatically unfair. However, if you would like to discuss your situation with a legal professional or would like help completing the necessary forms, one of our labour lawyers will be pleased to assist you. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

• How to remove a director who is also an employee
• Labour Dispute Resolution

Simon Dippenaar

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

View more posts from this author