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There are many reasons why an employee would be dismissed from their job, but not all are legal and some are clear cases of unfair dismissal for the CCMA. Scorpion Legal Protection explains 5 times that being dismissed from your job is unfair and you can take legal action.
Regardless of what misconduct at work an employee is accused of, the employer must conduct a disciplinary hearing. An employer may not simply tell employees not to come back or that they have been fired without a proper, formal hearing taking place. During this hearing, a case will have to be presented and the employee must be given an opportunity to present their case also. If it is proved that the employee is guilty of misconduct, then (depending on the seriousness of the offence) the employer could decide to dismiss the employee with immediate effect – but only after the hearing has been concluded.
No person may be discriminated against or dismissed on account of pregnancy. A dismissal is automatically unfair if the employee is dismissed because of her pregnancy, intended pregnancy or a reason related to her pregnancy (Section 187 of the Labour Relations Act).
If an employee is dismissed just because he/she has HIV/AIDS, this dismissal is based on discrimination and is automatically unfair. An employee who is no longer able to work must be provided with an incapacity hearing before they can be dismissed.
Employees may not be discriminated against, threatened or dismissed because they joined a union. This is because everyone has the right to freedom of association, which includes the right to join a trade union. This right is protected by the Constitution (Section 23) as well as in section 4 (1) of the Labour Relations Act.
Any time an employer wants to retrench employees, they must start a consultation process (also called a Section 189 process). Employees must get written notice, and the point of the consultations are to see if there is a way that retrenchment can be avoided. Employers may not simply notify employees that they are going to be retrenched, there is a very specific, legal process that must be followed – regardless of whether the company employs 5 people or 500 people.
You may also be interested in:
5 must-know retrenchment facts
Is suspension for theft fair?
Can you be fired for being drunk at work?
We have a team of lawyers available to answer your legal questions every first Thursday of the month from 11:30 to 13:30 on the Scorpion Legal Protection Facebook page for free. Have your legal question answered on the spot at the Scorpion Live Q&A.
* This is only basic legal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 25 May 2022
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