Dismissal – what to do next
advice, breadwinner, CCMA, disciplinary hearing, dismissal, employee, employer, labour, Labour Court, legal cost insurance, Legal Hero
Dismissal is tough to swallow, especially in this economy.
It’s a nasty feeling, especially if you have reason to believe that the dismissal was unfair. Did you know that about 100 000 cases were referred to the CCMA last year? Legal Hero saves the day by arranging CCMA/ Labour court representation for its policyholders (no excess fees when claiming).
- An unfair dismissal must be referred to the CCMA within 30 days.
- The CCMA procedure entails two ‘hearings:’
a) Conciliation (where no legal representation is allowed and the presiding officer only makes suggestions);
b) Arbitration (legal representation is allowed and the arbitrator makes a binding order).
- For a dismissal to be fair, it must be both substantively and procedurally fair. Substantive fairness means that a valid reason was proved by your boss (misconduct, incapacity or operational requirements). Procedural fairness means that a fair procedure was followed (warnings, disciplinary hearing, etc.).
- At a disciplinary hearing, the employee has the right to:
a) Be present (the employee needs to provide the employer with a reasonable excuse for postponement);
b) Bring his/her own witnesses;
c) Request an interpreter;
d) Not have the person with whom there is conflict chair the hearing;
e) Question and cross-examine the witnesses relied on by the employer;
f) Make reference to mitigating factors (first offence, apology, only breadwinner, years of loyal service to the employer, etc.).
- If you have been retrenched, you may visit the CCMA for conciliation (no binding order) but the matter may proceed to the Labour Court for a binding order.
- A dismissal is automatically unfair if it is due to discrimination on race, sex, religion, etc. Similar to retrenchments, one may approach the CCMA BUT for a binding order the matter must proceed to the Labour Court.
- Unlawful deductions from your salary by your employer OR outstanding salaries must be referred to the Department of Labour in your area (and not the CCMA).
Knowledge is power.