Dismissal & The CCMA

Everything you need to know as an employee or employer when it comes to unfair dismissal.

General

A dismissal is only considered lawful if it is: 

(1) Based on a proper and fair reason: 

Examples of fair reasons are: 

  • Misconduct - where a worker has committed a serious workplace offence;
  • Incapacity - where a worker is unable to do their job properly due to illness or disability; or
  • Retrenchment or redundancy- where an employer is reducing their staff or restructuring the workplace due to economic hardships.


(2) Carried out on procedurally correctly grounds: 

Features of a correct procedure are:

  • A worker must receive a suspension notice explaining why they are being suspended;
  • A worker must receive their salary while being suspended; and
  • A worker must be provided with a hearing, which is judged by an independent party, and where they can present their side of the story and lead evidence.

A dismissal, therefore, unlawful if it is:

  • Not carried out procedurally correctly; and/or
  • Carried out for a reason that is not considered proper and fair.

Note: Workers and employers should always attempt to resolve any dispute amongst themselves politely before resorting to legal action and/or any form of dismissal. Although tensions and emotions might run high, a polite but firm resolution to a dispute is always more favourable and beneficial for all involved parties when compared to a legal solution. 

Automatically Unfair or Procedurally Incorrect Dismissals 

Instances where a dismissal will be automatically considered to be unfair or procedurally incorrect:

  1. A worker is dismissed for exercising their rights;
  2. A worker is dismissed for rejecting unfair or unsafe working conditions;
  3. A worker is dismissed for being pregnant;
  4. A worker is dismissed for taking part in a lawful workplace strike;
  5. A worker is dismissed without being provided a hearing;
  6. A worker is dismissed without being able to provide their side of the story; or
  7. A worker is dismissed without receiving pay while they were suspended.

Compensation

Compensation for Unfair Dismissal: 

If a worker is dismissed unfairly, they are:

  • entitled to be reinstated in their former job;
  • 12 months salary (maximum) as compensation; or
  • 24 months salary (maximum) as compensation if they were dismissed on grounds that are considered automatically unfair or procedurally incorrect.

Procedurally Correct Dismissal

Features of a Procedurally Correct Dismissal: 

The following are features of a correct procedure: 

(1) The worker should receive a suspension notice and be informed (in writing) of the allegations against them in this suspension notice. 

(2) The worker should then be provided with the opportunity to explain why they should not be suspended. 

(3) The employer should then investigate the matter, including allowing the worker to tell their side of the story. 

(4) A charge sheet should be brought against the worker after the investigation is over. This charge sheet ought to explain the allegations against the worker and provide them with the date, time and location for their hearing. 

(5) The employer must ensure that, at the hearing:

  • An independent chairperson is appointed to run and judge the hearing;
  • The employer must lead evidence against the worker, which the worker is allowed to question; and
  • The worker is provided with an opportunity to dispute the allegations against them and lead their own evidence.

(Please note that a worker is not entitled to legal representation at this point. However, a worker is entitled to have a trade union representative or colleague to represent them). 

(6) The chairperson of the hearing, upon consideration of the facts, will then make a decision, which the worker or employer can appeal at the CCMA within 30 of days after the chairperson’s decision. 

Note: A worker is not entitled to legal representation at this point. However, a worker is entitled to have a trade union representative or colleague to represent them.

Dismissal, Now What?

If a worker or employer feels that a dismissal was unfair or wishes to appeal the finding of a chairperson, they can refer the matter to the CCMA or Bargaining Council. This must be done within 30 days after the date of the dismissal, unless there is a strong reason as to why this cannot be done. 

Steps: 

1. Approach the CCMA & complete a referral form: 

To lodge a dispute with the CCMA, a worker or employer needs to complete the LRA form 7.11 at their nearest CCMA office. 

Note: A worker or employer ought to sign paragraph 11 of the form in order to split conciliation (mediation) and arbitration. 

2. Deliver the referral document to the employer: 

The worker or employer must then deliver the referral document to the opposing party (i.e. employer or worker), this can be done via email or fax. 

Note: A worker or employer ought to keep the fax transmission slip or delivery slip or email as proof of delivery. 

3. Send the completed referral form and proof of delivery to the CCMA: 

The worker or employer must then deliver proof of delivery of the referral document to the CCMA. Please note that it is advisable to do this via fax or hand-deliver it to the nearest CCMA office. 

Note: A worker or employer ought to keep proof of delivery in case something goes wrong. 

4. Conciliation (Mediation): 

After delivery of the form, the CCMA will provide the worker or employer with a time and venue for a conciliation meeting. The goal of this meeting is to reach a mutually acceptable agreement between the worker and employer, if possible. This is the first meeting between the worker and their employer. Please note that no legal representation is allowed at this meeting. 

5. Arbitration: 

If no agreement is reached at conciliation, the CCMA will then issue a certificate and the matter will be referred to arbitration (within 3 months). Arbitration is a formal process (similar to a Court trial) where evidence is presented by both parties and judged by an arbitrator (who is similar to a Judge). In order to initiate arbitration, a worker or employer must complete a LRA form 7.13 and deliver it in terms of steps 2 to 3 above. Legal representation is allowed at arbitration. 

6. Arbitration Award: 

Upon conclusion of arbitration, the arbitrator (who is similar to a Judge) will deliver an award - this award is binding on the employer and worker. If an employer or worker does not comply with the award, it may be made an order of the Labour Court