Unfair Dismissal

SAPRA sometimes receives requests for assistance from Pagans who believe they have been unfairly dismissed from their employment because of their religion.

If you feel that you have been unfairly dismissed, what should you know, and what can you do to receive a fair hearing and / or fair compensation?

What you should know

Section 187(1)(f) of the Labour Relations Act determines that a dismissal is automatically unfair if an employee is dismissed because of “race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”

“The Labor Relations Act (“LRA”) has a Code of Good Practice for Dismissals that employers must follow. The ‘fairness’ of any dismissal is decided in two ways – substantive fairness and procedural fairness. Substantive fairness can be determined by asking “was there a ‘fair’ reason to dismiss the employee?” and “was dismissal appropriate under the circumstances?”. The employer must therefore always have a proper and fair reason for dismissing the employee, for example misconduct, incapacity or redundancy. Regarding procedural fairness, the employee must always have a fair hearing before being dismissed.” Unfair Dismissals – Know your Rights as an Employee – South Africa

Section 6 (1) of the Employment Equity Act states “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth”. Section 6(3) also prohibits harassment of an employee on any one, or a combination of grounds of unfair discrimination listed in subsection (1).

A dismissal may therefore be regarded as automatically unfair if the employee is dismissed because of “arbitrary discrimination”.

Essentially, you may not be dismissed from your employment simply because you are a Pagan or a Witch, even if your employer objects to your chosen religious persuasion!

Employers are not always truthful or fair

Sometimes employers will deliberately fabricate non-discriminatory reasons on paper for dismissing employees because they know that the real reasons why they are actually dismissing employees amount to arbitrary discrimination.

What can employees do to ensure that employers behave fairly and truthfully?

* The burden of proof for any allegation of unfair dismissal falls to the employee. *

Employees must keep accurate hard copy records of all prejudicial or discriminatory conversations that take place between themselves and their employer. E-mails between the employer and employee in which arbitrary discrimination is present may also be used as evidence; make sure you have paper copies of these. Where possible, employees should also attempt to obtain sworn affidavits from fellow employees who actually witnessed any discriminatory conversations or actions by their employers, in order to further corroborate their allegations of arbitrary discrimination.

Hearsay evidence, that is, evidence of something which a witness has not personally observed, is not admissible. In principle, neither is an opinion that is not supported by actual corroborating evidence.

An employee has the right to request and receive a copy of minutes of all disciplinary hearings between them and their employer. These may also be used as evidence of arbitrary discrimination if said minutes contain evidence of such. If employers do not record their own minutes, employees have the right to do so on their own. Ensure that these minutes are accurate and where possible, corroborated by a third party if such a party also attended the meeting, or alternatively, ensure that the minutes of the meeting are read and signed by both employer and employee after each meeting.

Failure by employers to accurately record the substance of meetings in which employees experience arbitrary discrimination constitutes unfair procedure.

What can you do if you have been unfairly dismissed?

If you believe that your dismissal was unfair, or, if your employer did not follow fair procedure before dismissing you, you can challenge the dismissal.

There are a number of ways in which this can be done.

Usually, employees who have been unfairly dismissed may approach the Commission for Conciliation, Mediation and Arbitration (CCMA) with a complaint of unfair dismissal. The CCMA, if asked, is obliged to advise a party to a dispute about the procedure to follow, as well as assist a party to a dispute to obtain legal advice, assistance or representation.

“The CCMA has been created to give speedily and easy access to labour fairness and resolution of disputes. Employees can easily refer a dispute by completing a form, the LRA 7.11 referral form and faxing or delivering it to the employer and the CCMA. The main purpose of the CCMA is to get employers and employees together as soon as possible, within 30 days, and to try and find a resolution to the dispute through a conciliation process. Only once the conciliation process is unsuccessful will the matter be referred to arbitration. The biggest percentage of cases referred to the CCMA are unfair dismissal cases, which are resolved through conciliation or arbitration.” Johanette Rheeder Incorportated Attorneys

The CCMA must attempt to resolve, through conciliation, any dispute referred to it.

“Unfairly dismissed or treated workers may refer disputes for conciliation in writing to a statutory or bargaining council; or the CCMA. Referrals must be made within 30 days of a dismissal date or an employer’s decision to dismiss. A dispute may be referred after the above periods if a worker can show good cause. The employer must receive a copy of the referral.” Basic Guide to Unfair Dismissal and Unfair Labour Practices.

If the CCMA fails to resolve a dispute, the complainant has the right to approach a Labour Court in order to request a hearing of the evidence for arbitrary discrimination. In any proceedings before the Labour Court, a party to the proceedings may either appear in person, or be represented by a legal practitioner. Judgements made by a Labour Court may be refered to the Labour Appeal Court if the complainant is unsatisfied with the verdict of the Labour Court.

Procedures to follow when requesting a dispute resolution or approaching the Labour Court

Contact the Commission for Conciliation, Mediation and Arbitration (CCMA), a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995, and ask for assistance in lodging a complaint against your employer within 30 days of an employer’s decision to dismiss you.

For more information on the exact procedure to follow when approaching the CCMA, consult the following: Taking a matter to the CCMA – Procedure

For more information on approaching the Labour Court, consult the following: Practice Manual of the Labour Court of South Africa.

You may approach the CCMA, or an attorney, to request them to assist you in approaching the Labour Court.

For more information consult the informative resources provided below.

Resources:
(Last accessed: 30 August 2016)

The South African Labour Guide

Basic Guide to Unfair Dismissal and Unfair Labour Practices

The role of human dignity in the assessment of fair compensation for unfair dismissals

Unfair Dismissals

Unfair Dismissals – Know your Rights as an Employee – South Africa

Johanette Rheeder Incorportated Attorneys

The Commission for Conciliation, Mediation and Arbitration (CCMA) is a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA).

Taking a matter to the CCMA – Procedure

Practice Manual of the Labour Court of South Africa

Labour Relations Act

Employment Equity Act

SAPRA ‘Your Rights’ Resource