The definition of the word dismissal according to google is the act of ordering/allowing someone to leave; or the act of treating someone as unworthy of serious consideration or rejection.
According to The Labour regulations Act everyone has the right not to be unfairly dismissed. Dismissal is fair if the specific person has reached retirement age; or the specific needs of the job are not being met.
Dismissal is unfair if one of the following occurred:
• a worker intended to or did take part in or supported a strike or protest; or
• a worker refused to do the work of a striking or locked out co-worker, unless his refusal will endanger life or health; or
• a worker is forced to accept a demand; or
• a worker intended to or did take action against an employer by –
• exercising a right; or
• taking part in proceedings; or
• a worker is pregnant or intends to be pregnant; or
• an employer discriminated against a worker 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; or
• an employer cannot prove -
• a worker’s misconduct or inability; or
• that the employer’s operational needs are valid; or
• that the dismissal procedure was fair.

What to do when you have been unfairly dismissed?

Depending on the industry you are working in, you will have to contact the CCMA (You can also contact the respective bargaining council, if your industry has one). You may approach the CCMA directly, phone the national call centre on 086 116 1616 or check online on http://www.ccma.org.za.

Referring disputes to the CCMA are free of charge, and you do not need an attorney or labour consultant to refer your dispute to the CCMA for conciliation. If you are interested in registering a dispute for conciliation at the CCMA, you will need to complete LRA Form 7.11 (This can be downloaded for the website listed above). It is important to know that employees need to complete this form within 30 calendar days from the day the dispute arose (this excludes the day the dispute arose, but includes that 30th day).

If an employee fails to comply to the above, he/she needs to apply for a process called condonation.
To do this the employee will have to provide:
• Reasons for lateness: The reasons why the matter was not referred within the prescribed 30 days;
• Prospects of success: The employee should explain with good reasons why he/she believes that the dismissal is unfair;
• Prejudice: (Reasons why the employee that he/she will be prejudiced)
• General: Any other general related information with regards to the dispute

The above reasons will be considered by the commissioner when making a decision on whether or not to grand condonation. Make sure to serve a notice to the other party after completion of the LRA form. You must supply proof that a copy of this form has been served to the other party. The easiest will be to fax it through to the employer and use the fax machines receipt as proof.

Other options will be:
• A copy of registered slip from the post office’
• A copy of a signed receipt if hand delivered;
• A signed statement confirming service by the person delivering the form;
• A copy of a fax confirmation form;



Written By: Nadene van der Mescht