Elton works as a cashier at the local butchery. He’s never had any warnings or gotten into trouble at work. One morning, his boss stormed in yelling that someone had stolen some of the store’s meat. The next day, Elton was told that he had been fired. He called his boss to find out what had happened, and his boss said that one of Elton’s colleagues told him that Elton had stolen the meat. Elton told him that this was a lie – he had never stolen a thing in his life – but his boss didn’t want to hear anything, and told him he better not come back to work. AZIKHIPHI! That’s not on!

Scorpion Legal Protection’s advice

The Labour Relations Act (LRA), Act 66 of 1995, has a Code of Good Practice for dismissals that all employers must follow. Part of this Code is procedural fairness – was there a fair procedure before the worker was dismissed? Employers can’t just fire people, even if they’ve done something wrong, there are strict processes that must be followed.

Employers must keep records for each worker stating what offences the worker has committed, what disciplinary action was taken, and why the action was taken. If there is repeated misconduct, the employer must give the worker warnings. A final warning for repeated misconduct or serious misconduct must be given in writing.

The worker must also always have a fair hearing before being dismissed. In other words, the worker must always get a chance to give his or her side of the story before the employer decides on dismissal.

This means:

• The worker must know in advance what the charges are against him or her.
• The worker must be given enough time to prepare for a hearing.
• The worker must be present at the hearing and be allowed to state his or her case.
• The worker must be allowed to be represented at the hearing by a co-worker.
• The worker must be allowed to see documents and cross-examine evidence used against him or her.
• The employer should bring all witnesses against the worker to the hearing. The worker should have a chance to cross-examine witnesses called against him or her.
• The worker should be allowed to call witnesses.
• The worker must be given reasons for any decisions taken.

For minor mistakes, the employer must use informal advice. Corrective discipline must be used for misconduct. The aim of corrective discipline is to correct the worker and help him or her overcome the problem.

Workers should not be dismissed for a first offence, unless it is very serious, like gross insubordination or dishonesty, intentional damage to the employer's property, putting others' safety at risk, or physical assault of a co-worker. If the company has an internal appeal process, Elton should follow this process first. Only if this fails should he look at instituting legal action against his employer.

Elton could have a case of unfair dismissal or unfair labour practice. He can lodge an application at the CCMA. If the CCMA finds the dismissal to be unfair, they could order Elton‘s employer to either reinstate him in his job or pay him out compensation for the unfair dismissal.

Tip:

• Always try to sort out the issue first by speaking to all parties involved and trying to come to a solution.
• In the case of an unfair dismissal dispute, you only have 30 days from the date on which the dispute arose to open a case at the CCMA
• If the matter is one of unfair labour practice, you have 90 days to open a case with the CCMA

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* Terms, conditions, limitations and exclusions apply (click here to view the Legal Membership Agreement). This is only basic advice and cannot be relied on solely. The stories, names, characters and incidents portrayed are used in a fictitious manner.