UNFAIR DISMISSAL
Have you lost your job and believe your dismissal was unfair?
Being dismissed can be devastating, particularly when you believe that you did nothing wrong, that the punishment was too harsh, or that your employer did not follow a fair process.
South African labour law requires a dismissal to be based on a fair reason and, generally, to be effected through a fair procedure. The Labour Relations Act recognises dismissal disputes relating, among other things, to conduct, capacity and operational requirements.
Your dismissal may require investigation if, for example:
- you were accused of misconduct;
- you were dismissed after a disciplinary hearing;
- you were dismissed without a proper disciplinary process;
- you were dismissed for alleged poor performance;
- you were dismissed because of incapacity or ill health;
- you were dismissed for absenteeism;
- you were accused of dishonesty or insubordination;
- you were retrenched;
- you believe the reason given for your dismissal is not the real reason;
- you believe the sanction of dismissal was too severe; or
- you believe the procedure followed by your employer was unfair.
Every dismissal must be considered on its own facts.
Act quickly after a dismissal
An unfair-dismissal dispute ordinarily needs to be referred within 30 days of the dismissal, subject to the applicable legal rules. If the referral is late, an application for condonation may be required.
WHAT MAKES A DISMISSAL UNFAIR?
A dismissal is not automatically fair simply because your employer says that you committed misconduct or were not performing properly.
The circumstances surrounding the dismissal need to be examined.
We can consider questions such as:
Was there a valid reason for the dismissal?
Was the allegation against you properly investigated?
Were you given an opportunity to respond?
Was the disciplinary process fair?
Was the sanction of dismissal appropriate in the circumstances?
Were similar employees treated differently for similar conduct?
Was the reason given by the employer genuinely the reason for the dismissal?
Did the employer comply with the applicable legal requirements?
These questions can become particularly important when you are challenging a dismissal at the CCMA, a Bargaining Council or, where appropriate, the Labour Court.
DISCIPLINARY HEARINGS
Have you been charged with misconduct at work?
Receiving a disciplinary notice can be extremely stressful.
You may be accused of:
- dishonesty;
- theft or fraud;
- insubordination;
- absenteeism;
- poor timekeeping;
- negligence;
- misconduct involving company property;
- breach of company policies;
- conflict with management or colleagues; or
- another alleged workplace offence.
A disciplinary hearing can potentially result in a warning, other disciplinary action or dismissal.
Do not assume that you have no defence simply because your employer has accused you of misconduct.
We can assist you in understanding the allegations, preparing your response and, where appropriate, representing you during the disciplinary process.
SUSPENSION AND UNFAIR DISCIPLINARY ACTION
Have you been suspended from work?
Have you received a final written warning?
Has your employer taken disciplinary action against you that you believe is unfair?
The fact that an employer has the power to discipline an employee does not mean that every disciplinary decision is necessarily fair.
The circumstances surrounding the disciplinary action should be examined, including the reason for the action, the procedure followed and the consequences for you.
We can advise you on your legal position and the appropriate steps available to you.
UNFAIR LABOUR PRACTICES
You do not have to be dismissed before a workplace dispute becomes a legal problem.
Certain workplace conduct may constitute an unfair labour practice, depending on the circumstances.
This can include disputes relating to matters such as:
- promotion;
- demotion;
- probation;
- disciplinary action short of dismissal;
- suspension;
- employment benefits; and
- other conduct falling within the statutory definition of an unfair labour practice.
If you believe you are being treated unfairly at work, we can assess the circumstances and advise you on whether you have a legal remedy.
AUTOMATICALLY UNFAIR DISMISSAL
Some dismissals are regarded as particularly serious under the Labour Relations Act.
Examples can include dismissal because of certain protected activities or circumstances, including dismissal related to pregnancy, unfair discrimination, protected disclosures and certain protected labour rights.
These matters require careful legal assessment because the applicable procedure and forum may differ from an ordinary misconduct or capacity dismissal.
RETRENCHMENT
Have you been told that your position is being eliminated?
Retrenchment can place you in an extremely difficult financial position.
If your employer says that your position is being terminated because of operational requirements, there are legal requirements governing the process.
You should understand your position before signing a retrenchment agreement or accepting an offer from your employer.
We can assist you in understanding the proposed retrenchment, the consultation process, the documents presented to you and your available options.
CONSTRUCTIVE DISMISSAL
Are you thinking of resigning because your workplace has become unbearable?
Sometimes an employee feels that the employer is deliberately making working conditions so difficult that resignation appears to be the only option.
This may raise the possibility of a constructive-dismissal dispute, but not every unpleasant or difficult workplace situation amounts to constructive dismissal.
If you are considering resigning because of the way you are being treated at work, obtain legal advice before handing in your resignation.
Once you resign, the circumstances surrounding that resignation can become extremely important.
CCMA AND BARGAINING COUNCIL DISPUTES
A labour dispute may need to be referred to the CCMA or the appropriate Bargaining Council, depending on the nature of the dispute and the sector in which you work.
The CCMA deals with conciliation and, in appropriate disputes, arbitration. Some matters fall outside the CCMA’s jurisdiction or may need to proceed through another forum.
We can assist you with:
- assessing your dispute;
- identifying the appropriate forum;
- preparing your case;
- preparing for conciliation;
- preparing for arbitration;
- gathering and presenting relevant evidence;
- advising you on the legal issues; and
- representation where appropriate.
HAVE YOU ALREADY BEEN DISMISSED?
If you have already lost your job, time is critical.
An ordinary unfair-dismissal referral generally has to be made within 30 days. Unfair-labour-practice disputes generally have a 90-day referral period. Where a matter is referred late, condonation may be necessary.
Do not assume that because your employer has given you a dismissal letter, the matter is finished.
Your dismissal can be assessed and your legal options explained to you.
OUR NO-WIN, NO-FEE ARRANGEMENT
A qualifying unfair-dismissal matter may be handled on a contingency-fee basis
We understand that someone who has just lost their employment may not have the financial resources to fund a lengthy legal dispute upfront.
For qualifying unfair-dismissal matters, Tjale Jubilee Attorneys may offer a No-Win, No-Fee arrangement, subject to our assessment of the matter and the conclusion of the appropriate contingency-fee agreement.
This means that, where your matter qualifies and the arrangement is agreed, you do not have to carry the ordinary financial burden of funding the matter upfront in the same way as a conventional fee arrangement.
Our contingency-fee arrangements are structured in accordance with the applicable legislation and professional requirements.
Speak to us so that we can assess whether your matter qualifies for this arrangement.
WHY CHOOSE TJALE JUBILEE ATTORNEYS?
When your employment is at risk, you need more than a generic answer.
You need to know:
Was my employer entitled to do this?
Was the procedure fair?
Do I have a case?
Where must I take the matter?
How much time do I have?
What evidence do I need?
What can I realistically achieve?
At Tjale Jubilee Attorneys, we take the time to understand the circumstances surrounding your dispute and provide practical legal guidance on the way forward.
Our objective is to help you understand your rights, protect your interests and take the appropriate legal steps.
If you have been dismissed, are facing disciplinary action, have received a retrenchment notice or believe that you are being treated unfairly at work, contact Tjale Jubilee Attorneys for a consultation.
Let us assess your situation and help you understand your legal options.
