You may just have been dismissed unfairly, what are your rights and what do you do?

With cutbacks happening across the country as a result of Covid-19, many employees may feel that they have been unfairly dismissed.

There are three ways that an employer can legally dismiss a worker.

1. Notice: An employer can give an employee notice to leave after a certain period.

The correct notice period is 1 week for a worker who has been employed for less than 6 months, 2 weeks for a worker who has been employed for between 6 months and a year, and 1 month for a worker who has been employed for over a year.

(The worker must get outstanding wages for the time they have worked, plus any leave pay that has not been taken.)

2. Payment in lieu of notice: Used when a worker leaves immediately.

Instead of giving notice, the employer can pay the worker their wages for the notice period.

The worker is still due their leave pay and any outstanding wages along with the notice pay.

3. Retrenchment: A worker is due severance pay of at least 1 week’s remuneration for every full year that the worker worked for the employer.

This payment must include the value of payment in kind, which means they are also due any outstanding wages and leave pay along with the severance package.

An employee could claim unfair dismissal through the Commission for Conciliation Mediation and Arbitration (CCMA) in the following circumstances as per the Labour Relations Act (LRA):

– A contract worker whose fixed-term contract is either ended or renewed on less favourable terms, where the worker expected the contract to be renewed because it has been before.

– A worker who was forced to leave because of an intolerable work environment.

– A woman who is not taken back into her job after maternity leave.

– A worker terminates their contract because the employer has transferred the contract to another employer on less favourable conditions.

An employee can claim unfair dismissal automatically if they have been dismissed for any of the following reasons:

– Exercising any of the rights given by the LRA or participating in proceedings in terms of the Act.

– Taking part in lawful union activities.

– Taking part in a legal strike or other industrial action or protest action.

– Refusing to do the work of someone who was on strike.

– Being pregnant, or any pregnancy related reason.

– Refusing to accept a change in working conditions.

– Where the employee is dismissed following a disclosure made by him in terms of the Disclosure of Information Act.

– Reasons of arbitrary discrimination (an employer may retire someone who has reached the agreed retirement age, or if the reason is based on an inherent requirement of the job, like speaking a certain language in order to do the job properly for example).

If you feel that you may have been unfairly dismissed, you can seek legal advice or to report it to the relevant union.

If the dismissal was deemed unfair, it may be ground for reinstatement, reemployment or compensation .

Source: The South African Labour Guide