FAWU Members Often Ask What Is An Unfair Dismissal?

An unfair dismissal normally happens due to the following reasons:

1.     When the employer believes an employee has acted against the company’s policies (misconduct);

2.     When the employer claims that the employee is unable to perform his duties  (incapacity);

3.     When the employer has to lay-off employees due to operational requirements e.g. restructuring (retrenchments).

There are two categories of unfair dismissals:

• ·        Substantively unfair dismissals
• ·        Procedurally unfair dismissals

In the case of a substantive unfair dismissal, the employer must prove that there were valid grounds for the dismissal.

In the case of a procedurally unfair dismissal, the employer did not follow the proper prescribed procedures before the dismissal.

(Note that an unfair dismissal can be either substantive or procedural or even  both in some cases.)

Automatic Unfair Dismissal

In certain cases, one finds an automatic unfair dismissal where the latter is based on unfair labour practices which are specifically prohibited in the Labour Relations Act. Some examples of these are:

·        If a worker participates in a legal strike or attend to union affairs;

·        termination of employment because of pregnancy;

·        refusal to allow workers to belong to a trade union (organisational rights);

·        not renewing a fixed- term contract where the expectation was created that the contract would in fact be renewed;

Refer Your Case In Time!

The CCMA (Commission for Conciliation, Mediation and Arbitration) provides a time- frame of thirty days for dismissed employees to report the case to them.

When Referring A Case After The Deadline

If the deadline is missed, a CCMA form (condonation) must be filled in which  provides a reason for the late referral.

What Happens if the CCMA Finds An Employee Unfairly Dismissed

In cases of unfair dismissal where the CCMA managed to resolve the dispute, the affected employee can expect to be either a) reinstated or (b) given a similar job with the same wages as before or (c) the parties can decide on monetary compensation.

If the union and the employer cannot come to a mutual agreement through the CCMA process, the latter will issue an award and the matter is usually referred to the Labour Court by either the union (on behalf of the employee) or the employer.