This is a complete guide to Unfair Dismissal in South Africa.
In this guide you will learn:
- What is regarded as an “Unfair Dismissal” in South African Labour Law and how to prove it
- How the CCMA process works for Unfair dismissal
- How to present your evidence at the CCMA
- Lots more
Let’s get started.
Introduction
Hello and welcome. My name is Aslam Moolla and I am a registered Attorney (National Legal Practice Council Registration number 65753).
My team and I organised this guide to help you understand the CCMA process for Unfair Dismissal.
The practical steps are as follows:
- Go through the guide.
- After going through the guide – select which steps you will start on immediately for your case.
- If there are forms to fill in – fill them in – to get your case heard.
At the end of this process, we hope that you will be feeling more confident about where to get help. If you still require assistance on what to do, please reach out to us, and we will help you as much as we can.
Here is what’s to come:
Contents
Chapter 1 – what is regarded as an “Unfair Dismissal”
Chapter 2 – how to prove Unfair Dismissal
Chapter 3 – Witnesses at the CCMA
Chapter 4 – how to present your evidence at the CCMA
Chapter 5 – What are the outcomes from a CCMA case
Chapter 6 – how to refer a case to the ccma (with free form)
Chapter 7 Frequently Asked Questions regarding Unfair Dismissal
Chapter 1:
what is regarded as an “Unfair Dismissal”
According to South African Law, an Unfair Dismissal occurs when a person is:
- dismissed from their job without a fair reason and
- dismissed without a proper procedure.
So there are 2 parts to check whether a dismissal is fair or not:
Part 1 – is there a far reason for the dismissal? (this is called “substantive fairness”)
Part 2 – has the proper procedure been followed? (this is called “procedural fairness”)
What is regarded as a fair reason to dismiss?
The Code of Good Practice states that it is generally not appropriate to dismiss an employee for a first offence except where the misconduct is so serious that it destroys the working relationship.
Examples of serious misconduct are –
- gross dishonesty,
- theft and fraud
- physical assault on the employer, a fellow employee, client or customer
- gross insubordination
- gross negligence
An employee may also be dismissed for less serious misconduct such as late coming or absenteeism, if such behaviour is repeated and corrective action (such as warnings) has failed.
The Commissioner in deciding whether there was a fair reason for dismissal will consider the following questions:
- Did the employee break a relevant workplace rule or standard?
- Is the rule or standard valid or reasonable?
- Was the employee aware of the rule or standard or should he or she have been reasonably aware of the rule or standard?
- Has the employer consistently applied the rule or standard to all employees?
- Is dismissal the appropriate or correct sanction?
Before deciding to dismiss an employee, an employer should also consider other factors. These are called mitigating (justifying) or aggravating (worsening) factors, and may include the employee’s disciplinary record, length of service and personal circumstances.
Actionable step:
In your own words, what are the key facts that lead to you being fired (Did your boss accuse you of stealing/ committing sexual harassment / not pitching up to work). Do you have a defence to that?
What is the proper procedure?
In addition to a valid reason, the employer must follow a fair procedure before dismissing an employee.
According to the Code of Good Practice on Dismissal, there are 5 requirements procedural fairness.
Lets go through them now.
Did the employer notify you of the allegations of misconduct using a form and language that you understood?
Did the employer allow you a reasonable time to prepare a response to the allegations that were made against you?
Did the employer allow you the assistance of a trade union representative or fellow employee in preparing a response and in stating a case at the disciplinary hearing?
Did the employer give you an opportunity to state a case in response to the allegations that were made against you?
Did the employer communicate the decision taken and furnish you with reasons?
If all the answers above were yes, then the basic requirements of procedural fairness were complied with.
If you answered no to any of the above, then the basic requirements of procedural fairness were not complied with.
If the CCMA rules that the employer did not follow the correct procedure when firing you, the CCMA may award you an amount of money because they did not follow the correct procedure for dismissal.
There is no fixed amount that you can get. It depends on how unfair they were by not following the procedure.
VERY IMPORTANT: If you have been dismissed, do not wait any longer. In terms of the Law, you only have 30 days to refer your case to the CCMA (if its for an unfair dismissal). If you refer your case 30 days after the date you were dismissed, you will have to explain why you were late in referring the case (this is called a condonation).
Therefore if you have been dismissed, get ready to act immediately. Let’s continue to how to prove an unfair dismissal
Chapter 2 – how to prove Unfair Dismissal
This section provides a detailed step by step guide on how to prove your unfair dismissal case at the CCMA. Please have a pen and paper ready by your side as this will help you prepare.
Step 1: Understand what the charges against you
The first step is to list all of the charges against you. Next to each charge, you have to decide whether you are guilty or not. If you are not guilty of the charge, then will proceed to the next step.
Example: John is charged with theft – and he believes that he is not guilty
Step 2: What defence do you intend raising
For those charges that you have indicated not guilty, write down what defence you have against that charge. In other words, why should you not be found guilty?
Example for John on the charge of theft – not guilty – the defence is that he did not steal the bread because he was not at work on that day
Step 3: List the evidence that you have next to each of your defences
You do not have physically have the evidence but at least make sure that you have an idea of what evidence you intend using. This can take the form of witnesses or documents.
Example for John on the charge of theft – not guilty – the defence is that he did not steal the bread because he was not at work on that day. His evidence is the workplace register because on that day it shows he was not at work. So he could not have committed any theft.
To recap: what you are doing at this stage is making a note of all the allegations that are made against you and what your defence is to each allegation. This is a very important step.
Make sure to write your defence and what evidence you intend using to prove your innocence for each charge. Your preparation here will be critical as you approach your hearing date.
In summary:
- You have a right to be treated fairly by the employer.
- The employer can only dismiss you for a fair reason.
- The employer has to follow a proper procedure before dismissing you.
If you need help with this, you can purchase a paid consultation session with a certified Labour Lawyer who will help you prepare this. Click here to setup your appointment.
Now we move onto evidence and witnesses that you can use at the CCMA.
Chapter 3 – Witnesses at the CCMA
First identify if you need witnesses. For example if your case involves something that needs to be proved and you have an eye witness or someone that confirm what you are saying is the truth, then you can call that person as a witness.
The next step is to speak to that person and politely ask them if they would be willing to help you. Remember that this person may also be afraid to testify because they do not want to risk losing their job. It’s best to handle this discussion in a calm and frank manner.
Tip: If they are not willing to testify for you, then you can subpoena them.
When your witness arrives on the day, ask them if they need anything and remind them to be calm. Accommodate them as much as you can because they are there to help you.
When they enter the room, the commissioner will ask the witness to identify themselves on record. The Commissioner will then advise the witness of the process of questioning.
You will start with your questions first. Focus on what happened and why your version is true.
After you are completed, the other side will then get a chance to ask your witness questions. The purpose of these questions is to determine if your witness is telling the truth.
You may ask your witness questions again once the other side is complete. This is called re-examination.
Actionable Tip:
The Commissioner may also question your witness to determine the probabilities of the different versions in the case and assess the reliability of the evidence presented.
Pay attention to what the commissioner is focussing on when asking questions because that is the area that will make or break your case.
How will your witness be assessed?
The commissioner will look at the following:
1. the extent of the witness’s first-hand knowledge of the events;
2. any personal interest or bias the witness may have;
3. any contradictions and inconsistencies;
4. corroboration by other witnesses;
5. the credibility of the witness, including demeanour.
Actionable Tip:
It is better for your witnesses who are still to give evidence to sit outside the hearing room, unless you specifically want this witness to be present. Although if your witness sits in, the commissioners have a choice to attach little weight to their testimony because it can be argued that your witness listened to everyone else and doctored their evidence. That is why it is better for your witnesses to sit outside the room until its their turn. Just make sure they don’t run away.
Now we turn to how to present your evidence at the CCMA
Chapter 4 – how to present your evidence at the CCMA
Make sure you attend the Conciliation and Arbitration
Remember to be calm. You are there to present your case in the best light possible. If your emotions get the better of you – it will be more difficult for you to win your case.
Give your opening statement
The purpose of the opening statement is to explain your case and why you should not be found guilty.
An example of a good opening statement is the following:
“Hello Commissioner. My name is John from Durban. I am at the CCMA today for an unfair dismissal case against my former employer. I have been with the company for 2 years in the position of Admin Manager. I believe that they have unfairly dismissed me because they did not have a legal reason to do so. I will be calling 2 witnesses. I also have documents such as my employment contract. My salary at the time of dismissal was R 12 500. Thank you”
Hear the evidence led by the employer
Make sure to ask questions on what the witnesses’ against you are saying. Focus on the facts of the case. Check dates, times, version of events etc. Write their testimony down and cross examine them fully.
Lead your evidence
After the employer has had a chance, it will be your turn. Start with your strongest evidence first. In other words, if you have a witness, call that witness.
If you have documentary proof then hand up copies. Always lead with your strongest evidence first. Then you can build your case on that.
When its your turn, do not hesitate to lead your evidence on why you are innocent. This is all the documents and witnesses that you noted above.
What kind of questions to ask at the CCMA?
Ask questions that will prove your innocence. In other words, choose questions that show your case is true and the employer’s case is false.
Example questions are: how did you know? Why did you assume this?
Now we move onto how the CCMA can actually help you.
Chapter 5 – What are the outcomes from a CCMA case
If the employer did not have a fair reason to fire you and they did not follow the correct procedure, then you have a good chance of winning the case at the CCMA.
If you win the case, then you have 3 options:
i) reinstatement,
ii) re-employment or
iii) compensation.
Reinstatement means you get your job back exactly as it was prior to your dismissal together with whatever money is due to you.
Re-employment means you get your job back but in a different position
Compensation means you get money paid to you. This depends on how long you worked for. The longer you worked for the more you will get. But this is capped at 12 months. You cannot get more than 12 months of your salary.
How to determine what is a fair settlement?
There are 3 factors which are important:
1. Do you want to go back to work for the employer? Or do you want compensation?
2. Are you the sole breadwinner in your family? In other words what will happen if you decide to look for another job?
3. Do you believe that the working relationship between you and the employer has completely broken down?
Based on the answers to the above questions, you may decide to walk away from the employer after being treated unfairly.
A fair settlement is a give and take. Generally the longer you worked for a company, the better your compensation will be.
Section 194 of the Labour Relations Act (LRA) allows the CCMA to grant employees compensation for unfair dismissal where reinstatement is not appropriate.
A compensation order is one that requires the employer to pay the employee an amount of money for the unfair dismissal.
How much of compensation can be awarded?
For an unfair dismissal it cannot be more than twelve months of your salary. The actual amount is up to judges and arbitrators discretion. Judges and arbitrators have a very wide discretion to decide how much to award.
In light of the above, there is no general hard and fast rule for how much compensation should be given. The amount of compensation is determined on a case by case basis. In other words each case is looked at individually.
Can I present my case on my own at the CCMA?
Yes you can. But remember that winning cases at the CCMA is all about evidence. You need to have credible evidence to back up your case. Without evidence, your chances of winning are slim. Therefore please ensure that you have enough evidence to prove your case.
Thus far, we covered what is regarded as “unfair” dismissals and how to prove your case.
Now we move on how to refer your case to the CCMA
Chapter 6 – how to refer a case to the ccma (with free form)
You may have to go to the Bargaining Council and not the CCMA. This depends on the industry you are working in, you will have to contact the CCMA or the respective bargaining council if there is one in your industry.
For clarity on whether it should be the CCMA or a bargaining council, you may approach the CCMA directly and/or phone the national call centre on 0861 16 16 16.
Please read further below for a detailed step by step guide on how to refer your case to the CCMA or Bargaining Council.
Step 1: Get your case registered
The first step is to get your case registered at the CCMA.
Practically, go to your local CCMA (check their website for one closest to you) and ask for a CCMA case referral form (also known as LRA Form 7.11.). These forms are available from the CCMA offices and from our website. Once you have the form, fill in the information as shown on the form.
Step 2: Deliver a copy of the referral form to your ex-employer
Once you have completed the form, you have to deliver a copy to your ex-employer.
This can be done via fax, registered mail, and courier or delivered in person.
It’s very important that you are able to prove that a copy was delivered to them – in case they say they did not get it. So keep a copy of proof that you served the form.
Step 3: File your referral form at the CCMA and attach proof of delivery on the employer
You do not have physically deliver the filled in referral form to the CCMA. You can also fax the form or post it back to the CCMA.
Make sure that a copy of the proof that the form had been served on the ex-employer is also attached.
Step 4: Wait for a hearing date from the CCMA
The CCMA will inform both you and the ex-employer as to the date, time and venue of the first hearing – which is usually conciliation.
Step 5: Attend the Conciliation hearing
Conciliation is a flexible and informal process to see if the case can be settled between the parties. No evidence is lead.
If no settlement agreement is reached, the CCMA Commissioner will issue a certificate stating that the case is unresolved at Conciliation stage. The next step in arbitration.
Tip: Try and settle your case at conciliation because the settlement is still in your hands. Once it goes to arbitration, then its in the Commissioners hands.
Step 6: Fill in the request for Arbitration form
If the case was not settled, you must set it down for arbitration.
In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). You can also get this from the CCMA or here on our website.
A copy must be served on the ex-employer just like earlier.
Step 7 Attend your arbitration
Arbitration is a formal process which involves both you and the ex-employer leading evidence like witnesses and documents to prove whose case is stronger.
This requires preparation on your part because you may have to prove that the employer treated you unfairly. This is done through evidence which you must lead. Legal representation may be allowed.
How long does it take before the CCMA gives its ruling?
The commissioner will make a final and binding decision, called an arbitration award, within 14 days.
Chapter 7 Frequently Asked Questions regarding Unfair Dismissal
Do I have to get a warning first before being dismissed?
It depends on what the offence is.
Generally if it a serious offence (like theft or sexual harassment) you do not have to get a warning first and the employer can dismiss you on the first offence.
A good idea is to check the disciplinary code of conduct which can be found at your workplace to see what the sanction is for that offence that you charged with.
Can I go straight to the CCMA after my dismissal?
Yes once you received formal notice in writing that you have been dismissed, please proceed to your nearest CCMA to lodge your case.
Good work. We covered
- An explanation for what makes a dismissal unfair (also called Substantive fairness)
- A checklist on the procedure (also called procedural fairness)
- What outcome you want from the CCMA (compensation or reinstatement)
Essentially your preparation is now complete. You have all your bases covered.
Please review the article above. In our experience it is very important to make sure you understand each of the major stages of an unfair dismissal case.
We believe that the better prepared you are – the better chance you will have of succeeding in your case at the CCMA.
We also prepared detailed articles like this on the CCMA process which covers at conciliation and arbitration. Click here to read that.
If you have a question or topic that you want us to cover, send us an email on ______. Please keep it to 3-4 paragraphs detailing your situation.
We get a lot of emails from the internet and from our paying clients, so please give us a few days to respond. Please be patient and we will get back to you.
However, if you want help immediately you can purchase a paid consultation session with a certified labour lawyer.
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Now we would Like to Hear From You
Conclusion
We hope you found this Unfair Dismissal guide helpful.
Now We would like to hear what you have to say:
Which tip from today’s post do you want to try?
Are you going to challenge substantive fairness or procedural fairness?
Or maybe you are a business owner that has a question.
Either way, let us know by leaving a comment below right now.
