What is an unfair dismissal?
A dismissal is unfair when an employee is dismissed because the reason for dismissal is unfair, or the procedure is unfair, or both. What is an unfair reason is determined by the circumstances of each case. There is no list of unfair reasons for dismissals. On the other hand, the law is quite clear as what a fair procedure is. To be considered a fair procedure, the employee must be given reasonable notice of any hearing, time to prepare, the right to be heard, the right to cross examine the employer and witnesses, and the right to representation.
What actions can lead to my dismissal?
There is no fixed list of reasons for dismissal. It depends on the circumstances of each case. However, here are some examples of dismissible offences: drunk on duty; dishonesty; gross insubordination; theft of company property; assault. Always peruse the disciplinary code of your employer for actions specifically applicable to you.
How much paid sick leave am I entitled to per year?
It works on a 36-month cycle. If you work five days per week, you are entitled to 30 days sick leave for every 36 months worked. If you work six days per week you are entitled to 36 days sick leave for every 36 months worked.
How much paid annual leave am I entitled to per year?
It works on a cycle of 12 months with the same employer. If you work a five-day week you are entitled to 15 working days per cycle; if you work a six-day week then it works out to 18 working days per cycle.
Can I be dismissed for poor performance?
Yes, you can be dismissed for poor performance. However, before your employer can dismiss you for poor performance, they must follow a fair procedure. You must be informed about your poor performance; your employer must discuss the reasons for your poor performance with you; you must be allowed to make suggestions; your employer must provide training to help you to improve your performance. Essentially, you must be given an opportunity to improve your performance. If you do not improve after these measures, you can be dismissed after a hearing.
Is my employer allowed to stop me from joining a union?
In terms of Section 4(1) of the LRA every employee has the right to participate in forming a trade union or joining a trade union.
Do I need to have a written employment contract?
Yes, the BCEA states that you must have a written employment contract as well as payslips.
Can my employment contract override legislation such as the Basic Conditions of Employment Act?
No, your contract cannot override the Basic Conditions of Employment Act. The Act provides certain minimum conditions of employment, such as leave and maximum hours. An individual contract of employment may not provide for less favourable terms. It can however provide for more favourable terms.
Can my employer terminate the employment contract simply by giving me notice?
No, your employer cannot simply terminate your employment, even if your employment contract states that they can. The law requires that to dismiss an employee, there must be a fair reason and a fair procedure. Unless it is a temporary contract or fixed term in line with the new provisions of 3-6 months.
What is a collective agreement?
A collective agreement is a written agreement between a union or federation of unions, and an employer's organisation, in a particular industry. The agreement is a result of negotiations between these groups, and contains various terms and conditions related to the industry. Once signed, the terms of the agreement are binding on the industry and will override the terms of an individual employment contract.
What is the CCMA and how does it work?
The Commission for Conciliation, Mediation and Arbitration is aimed at promoting fair practices in the work environment. It is an independent body that resolves labour disputes and provides advice and training on labour relations. The CCMA resolves disputes between employers and employees by way of mediation and arbitration.
Can I lodge a dispute with my employer at the CCMA?
Yes, you can. You can lodge a claim with the CCMA for an Unfair Labour Practice, unfair dismissal and unfair discrimination if you’re not part of a bargaining council. Unfair Dismissal is 30 days, Unfair labour practice is 90 days, and discrimination is 6 months.
Can I be represented by an attorney at the CCMA?
The first phase of proceedings at the CCMA is called conciliation (like mediation). You may not be represented by an attorney at this stage.
The second phase is called arbitration. Under certain circumstances, you may be represented by an attorney at this stage.
Can I go to the CCMA if I am an independent contractor?
No, you may not. The Labour Relations Act specifically excludes independent contractors from the jurisdiction of the CCMA.
Is the process at the CCMA complicated, like a court case?
No, the process at the CCMA is not complicated. Lodging a claim is simple (a matter of filling out a form). The actual hearings are fairly informal, but arbitration can be similar to a court case with cross examination and sharing of evidence.
