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A follower on our Scorpion Legal Protection Facebook page recently asked us “If I am fired, what must my employer pay me?” There are certain payouts your employer must give you by law even if you are fired/dismissed, but it also depends on how you were dismissed.
What you can expect to be paid out by your employer when you are dismissed depends a lot on your employment contract and the reasons for being dismissed. In cases where you don’t have an employment contract, you are still protected by the Basic Conditions of Employment Act (BCEA).
This is when your employer does not want you to work your notice period and wants you to leave immediately. Instead of working your notice period, the employer pays you not to. In cases where you are dismissed as a result of the disciplinary process, your employer must still pay you notice pay if he does not want you to work the notice period.
However, there are cases where summary dismissal is the end result of the disciplinary process. Summary dismissal means the dismissal happens immediately after a disciplinary enquiry. Your employer does not have to give you notice ahead of time for this and you are not entitled to notice pay as the terms of the contract of employment would be considered to have been repudiated. Summary dismissal usually happens when an employee commits a serious act of misconduct (what’s considered serious misconduct should be clearly explained in the employer’s code of conduct document). The employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct that justifies this kind of dismissal, for example, wilful damage to property, physical assault, gross dishonesty, fraud, sexual harassment.
According to the BCEA, an employer must pay out “for any period of annual leave due in terms of section 20(2) that the employee has not taken.” The employer must also pay out any paid time off earned by the employee, for example, where the employee has earned paid time off for overtime work as per agreement with the employer instead of getting paid for this overtime work.
When you are dismissed, you are owed all monthly contributions made (by both employer and employee) plus any investment growth (or loss) on this money (the fund may have made a loss in the course of the investment). You can choose to withdraw the money or transfer it to another registered retirement or preservation fund. Money withdrawn from pension/provident funds are taxed heavily according to the Income Tax Act.
You may also be interested in:
Final warning without previous warnings?
Going to CCMA over dismissal
Employer refuses to pay out leave
If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing. This is not financial advice.
Date added: 29 June 2021
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