by Kerry Wilson* told the Guru how she had been unfairly dismissed at work following an incident. She had taken family responsibility leave, and then responded remotely to an email from her boss.
When she returned to work the next day, she was given a notice of a disciplinary hearing owing to ‘insubordination’ because of the tone of her email.
However, Kerry felt she had responded with due respect to her superior and suspected that the charge of insubordination was an excuse. She says her boss did not want to tolerate her domestic responsibilities.
Fortunately, Kerry had legal insurance and was therefore able to take a lawyer to the CCMA proceedings. As a result, she was reinstated and paid her salary in full.
As a single mother, Kerry would not have been able to survive without her full income. She was also in a good position in her current company in terms of earnings and relationships with her colleagues.
Therefore, if she had to move to another company, she would have been in a worse position than before.
Kerry is not alone in her experiences. Unfair dismissals are commonplace in South Africa, affecting everyone from domestic workers to senior executives.
An unfair dismissal according to our Labor Relations Act could be any of the following:
1. An employer terminates a contract of employment with or without notice.
2. A contract employee whose fixed-term contract is suddenly ended or renewed on less favorable terms.
3. A woman who is refused placement into her position after her maternity leave.
4. An employer dismisses a number of employees for some reason and offers to re-employ one or some of the dismissed employees but not all of them.
5. An employee who was forced to leave his employment because the employer made the working environment unbearable or intolerable (constructive dismissal).
6. The employee leaves work because a new employer has taken over the business and is not paying the employee the same wages or has changed the conditions of employment.
7. Employees have been dismissed for operational reasons (sometimes referred to as “retrenched”). In this case the employer must pay the employee severance pay of at least one week’s remuneration for every full year that the employee worked for that employer.
While an employee normally does not have the opportunity to bring legal representation to the internal disciplinary hearing, she can normally bring a lawyer to represent her at the CCMA hearings.
These hearings can prove very intimidating. Even though the CCMA offers all employees fair representation, having a private lawyer present will give the employee the confidence that they are getting the best representation.
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