As an employee, being dismissed is the worst form of disciplinary action, or the worst outcome of a retrenchment process.
After a dismissal, you usually feel aggrieved for being dismissed and you want to take revenge. When you are dismissed unfairly, you can get justice by referring a unfair dismissal dispute to the CCMA.
The process is fairly simple and can be done in a few steps that we will outline below.
But, referring the dispute is the easy part. Once your dispute comes before a commissioner, that is when it might become difficult.
Employees can be dismissed for various reasons, from misconduct or poor work performance, to operational requirements (retrenchment).
Irrespective of the reason for the dismissal, the dismissal is only fair if:
- There is a good reason to dismiss the employee (substantive fairness); AND
- A fair procedure was followed before the employee was dismissed (procedural fairness).
Substantive fairness of a dismissal refers to the “substance” thereof. An employee can only be dismissed for a valid reason. If an employee is dismissed for misconduct, the offence must be serious (either the single offence or the last of several less-serious offences) before it will justify dismissal.
If retrenched, there must similarly be a valid reason for the retrenchment, for example a position became redundant, or the employer can no longer afford the salaries of all its employees. An employer cannot hide behind “operational requirements” to get rid of employees for other invalid reasons.
Even if the reason for dismissal is a valid reason, a fair process must be followed by an employer before dismissing an employee.
Procedural unfairness is what makes most unfair dismissals, unfair. This is so, because employers neglect the procedure, either because they are not aware of the procedure they need to follow, or they simply refuse to follow the correct procedure because they think a valid reason to dismiss is enough.
The most important goal of a fair procedure, is to allow the employee to state his side of the story and to give reasons why he/she should not be dismissed. If no such opportunity is granted, a dismissal would be unfair, irrespective of the reason for the dismissal.
HOW TO WIN A CCMA CASE:
Reasons to Refer a Dispute
If you are dismissed for misconduct, consider whether there is a valid reason for your dismissal. If not, the dismissal would be substantively unfair.
- You had to have been aware of the workplace rule that you broke if you are dismissed for misconduct.
- Misconduct should also be serious enough to warrant dismissal. Either serious misconduct or several less-serious offences in a short time.
Did you receive a proper notice of a disciplinary hearing (48 – 72 hours before the hearing), informing you of:
- The alleged misconduct;
- The time and date of the disciplinary hearing;
- Your rights at the disciplinary hearing;
- That the misconduct is of such a nature that could lead to your dismissal, if found guilty.
If you did not receive a proper notice of a disciplinary hearing, the dismissal would be unfair.
Was the disciplinary hearing conducted properly? If not, the dismissal would be unfair.
- Was the chairperson objective and unbiased;
- Were you afforded an opportunity to state your case;
- Did the chairperson consider the matter before making a ruling;
- Were you afforded an opportunity to present mitigating factors to avoid dismissal.
After the disciplinary hearing, you should receive a notice of the outcome thereof, the reasons for being found guilty and for dismissing you, and a copy of the minutes of the disciplinary hearing.
If the employer slipped on any of the above points, the dismissal is potentially unfair and a dispute can be referred to the CCMA.
The reasons for retrenchment should be the truth and genuine. Not some “made-up” reasons just to get rid of an employee / employees.
A proper retrenchment process should have been followed:
- Notice to employees that are selected to be retrenched;
- A consultation to discuss the reasons for the possible retrenchment and alternatives to retrenchment.
- Notice informing you of the outcome of the consultation and why the alternatives to retrenchment are not accepted.
Again, if the employer slipped on any of the above points, the retrenchment is potentially unfair and a dispute can be referred to the CCMA.
Referring a Dispute to the CCMA
A dispute can be referred to the CCMA, by:
- Downloading and completing the Dispute Referral Form;
- Sending the form to your employer (by email, fax or hand delivered); and
- Sending the form to the nearest CCMA office (including proof that you sent it to your employer).
- (more information HERE).
Once the dispute is registered, the CCMA will inform the parties of the date, time and venue of the Conciliation.
Conciliation is a process where the parties attempt to reach an amicable resolution of the dispute. It usually involves only the Commissioner, the Employer and the Employee, no Attorneys.
If a settlement is reached during the conciliation, the matter comes to an end. If the dispute remains unresolved, the matter proceeds to arbitration.
Arbitration is a formal hearing, where each party has an opportunity to present his case, call witnesses and cross-examine the other party’s witnesses. At the end of the arbitration there is a winner and a loser. Except for being a bit more informal, arbitration is very similar to court proceedings.
Winning Arbitration as an Employee
The first thing to remember as an employee, is that the employee has the burden of proof to prove that he/she was dismissed. Usually this is common cause, especially when the employer has informed the employee in writing of the dismissal. But when the existence of the dismissal is in dispute, the first step to a successful arbitration is to prove the dismissal.
Once it is established that you were dismissed, and since every dismissal is deemed to be unfair until the contrary is proved, the burden of proof shifts to the employer to prove that the dismissal was fair, both substantively and procedurally.
To win arbitration, you need to:
- Prove you have been dismissed, only if that is in dispute;
- The Presiding Commissioner will usually ask the employee to start the proceedings when the dismissal is disputed;
- The employee can prove a dismissal by:
- proving that an employment relationship existed between the parties;
- proving that the employer had taken some initiative to terminate the contract; and
- that the employer’s action had caused the termination.
- Once the dismissal is proven the proceedings will turn to the employer to prove the fairness of the dismissal.
- All the employee needs to do is:
- Carefully cross-examine the employer’s witnesses in such a way to uncover any untruths; and
- Present his/her own evidence that the dismissal was unfair, by placing evidence before the Commissioner that any of the above requirements for Substantive or Procedural Fairness were not met by the employer.
An arbitration hearing can be intimidating to even the most senior and experienced employees, but it does not need to be. The CCMA follows a set procedure, and as long as you align your case with this procedure, backed by sufficient evidence, there is no reason why the Commissioner could not find in your favour.
- If continued employment is possible, given the circumstances, the employee can request reinstatement with full remuneration from the date of dismissal.
- If continued employment is impossible, the employee is entitled to compensation. It is good practice to request compensation as an alternative, even if you want to be reinstated. If the employer is of the opinion that continued employment is impossible, or if the dismissal was substantively fair but only procedurally unfair, the Commissioner has an alternative remedy to award.
- For Automatically Unfair Dismissals, the maximum compensation is 24 months’ remuneration.
- For Unfair Dismissals that are not automatically unfair, the maximum compensation is 12 months’ remuneration.
It is important to note that the principle of fairness usually dictates the amount of compensation awarded. The higher the degree of unfairness, the higher the compensation will be. It is therefore important for employees to not only focus on one or two reasons to show why their dismissal was unfair, but to focus on each and every reason that makes their dismissal unfair.