Legal Matters

When is dismissal unfair? Dismissal is unfair if the employer is unable prove that the reason for dismissal was fair. What is regarded as dismissal by the Law? (Labour Relations Act 66 Of 1995) 

The employer terminates a service contract with or without notice.

• You have taken maternity leave according to the law and at your return the employer refuses to let you resume your duties.
• The employer has dismissed a number of employees for the same or similar reasons and is willing to re-employ some of the employees, but refuses to re-employ the others who have also been dismissed.
• You terminate your contract with or without notice because the employer has made it unbearable for you to continue working there.
• You terminate your service contract with or without notice because the new employer at the transferal of a business offers employees conditions less favorable than those they enjoyed under the previous employer.

Who must prove my dismissal?

Regarding the abovementioned cases, it is important to know that in disputes over unfair dismissal, you have to prove that you have in fact been dismissed as defined by law and the employer has to prove, one the other hand, that the dismissal was fair.     

When is dismissal unfair?

Dismissal is unfair if the employer is unable prove that the reason for dismissal was fair in cases relating to:

• Your behaviour (misbehaviour) ability (disability) or suitability (unsuitability). There are therefore three (3) different grounds on which you can be dismissed with reason. 
• The employer’s industrial requirements. Due to business reasons, e.g. losses, a fair reason for dismissal of employees might exist.

The employer has to prove that a fair procedure was adhered to – this is contained in the disciplinary code and has to be modeled on the Good Practice Code – Addendum 8 to the Labour Relations Act.

What is automatic unfair dismissal?
 
There are cases that are considered by law to be automatic unfair dismissals.
If the reason for dismissal was the following:

• You were part of a strike or protest march or supported such or indicated the same and was dismissed, while the strike or protest action complied with the conditions of the law.
• You refused to perform a duty or expressed an intention to refuse to perform a duty usually executed by you at a time when you took part in a protest action which complied with the conditions of the law, unless it was essential work (necessary to prevent the loss or endangerment of life, health etc.)
• You were forced to accept a claim with regard to any issue of mutual concern.
• You exercised any right that you enjoy by law or took part in proceedings in accordance with the law, which could be seen as an action against the employer.
• The fact that you are pregnant or want to become pregnant or something relating to this.
• The employer has discriminated unfairly against you on any arbitrary grounds such as among others race, sex, colour, sexual orientation, age, religions, etc.

Please note that a dismissal could be viewed as fair if the reason for dismissal is based on an inherent requirement of the specific job and dismissal on the grounds of age is fair if the employee has reached the normal or agreed upon retirement age.

• A transfer of the business.
• A transgression of the Law on Confidentiality by the employer.

How long after my dismissal do I have to report my dispute?

A written referral on the prescribed form has to be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant Council within 30 days after the date of dismissal. It is your duty to do the referral and to ascertain if the CCMA or a council has jurisdiction over your case. When in doubt, direct a query to the Department of Labour. The prescribed forms are available at the CCMA or Council. The Department of Labour should also be able to assist you with the forms.

It is, therefore, essential that the exact day and date of dismissal should be determined. If you report an unfair dismissal too late, you will have to submit valid reasons for the late submission. These will then be considered. Even if somebody submits a report on your behalf or assists you in the referral, this is no excuse for a late submission – the blame cannot be shifted.
 
What happens if the CCMA decides in favour of the employer?

In this case you have a two options:

Application to overturn
You could apply to the relevant Commission or Council where the decision was reached and apply for the decision to be overturned, but only in the following cases:

• If the application for the decision has been wrongful, in the absence of any party who would be affected by this decision.
• If there should be ambivalence, or an error, or an omission in the verdict – you could, however, only apply for an erratum of that specific part.

If all the parties involved in the decision had a misapprehension regarding a certain aspect.

The law does not stipulate a specific period in which such an application has to take place.

Application for revision
Any party in the dispute can apply to the Labour Court for a verdict of the Commission/ Council to be overturned, if he or she should be of the opinion that there was a flaw in the arbitration process.

When referring to a flaw, the following is implied:

• The commissioner has misbehaved with regard to his duties.
• In the course of the arbitration, the commissioner committed a gross irregularity, such as e.g. to prevent the applicant from entering evidence by the respondent in the dispute.
• The commissioner has overreached his jurisdiction, e.g. awarding a verdict that he has no authority to award.
• The verdict has been unlawfully obtained – e.g. where corruption or blackmail was involved. 

The application for revision has to be made within six (6) weeks after the date on which the verdict/ decision was reached. The Labour Court can accept a late application if valid reasons exist. Please note, even if late applications are in some instances condoned, the other party usually opposes them. Only valid reasons will be accepted. Please adhere to the time limits stipulated by law!