32-year-old Siphokazi was working as a teller at a local supermarket chain in Johannesburg CBD. She took part in a protected wage strike and when she returned to work the next day, she was told she no longer had a job.
Siphokazi asked to speak to her manager to discuss keeping her job, but he refused and asked her to leave the premises. Siphokazi is the breadwinner in her family and takes care of her sick mother, uncle, and her two children. Siphokazi’s employer had not given her any reason for letting her go except for the fact that she participated in a legal strike.
At a stokvel meeting in Soweto, she sought advice from Ous Connie, who was recently retrenched. Ous Connie, who is a Scorpion Legal Protection policyholder was able to get the legal assistance she needed. She offered Siphokazi some good advice regarding her unfair dismissal.
Dismissal means an employer ending an employee’s contract of employment. This is commonly known as “getting fired” or “being let go”.
There are different types of dismissals, including misconduct. Misconduct relates to wrongdoing on the part of the employee, for example: theft, insubordination, or failure to obey reasonable instruction. An employer is justified in proceeding with disciplinary steps against you on the grounds of misconduct.
The second type of dismissal or reason for dismissal is based on grounds of incapacity. Incapacity can be divided into two subsections, the first relates to poor work performance, in other words, that you’re not performing according to the standard expected by your employer. The second relates to incapacity on the grounds of ill-health. The final type of dismissal is on grounds of operational requirements or retrenchments.
None of these types of dismissal apply to Siphokazi’s situation. She participated in a strike but it was a legal strike so she could conclude that she was unfairly dismissed. She was also not given an opportunity to state her case, neither did she receive a warning. This means her employer didn’t follow the correct procedure for dismissal and Siphokazi can pursue her legal options and take her employer to the CCMA or bargaining counsel.
Here are two practical steps for Siphokazi to take:
1. Siphokazi has to refer her unfair dismissal to the CCMA within 30 days of the dismissal.
If she is late, she will have to accompany her referral to the CCMA with an application for condonation.
2. State her case
Siphokazi’s dismissal was both procedurally or substantively unfair. Procedurally unfair because her employer did not have a disciplinary hearing. Substantively unfair because she participated in a legal strike.
https://www.youtube.com/watch?v=J6yXV-yLRlQ
For more information and advice on unfair dismissals and other legal issues that may affect you, contact Scorpion Legal Protection, or visit their Facebook page.
To find out more about Scorpion Legal Protection, call 0861 333 333, or SMS “KASI” to 34453 and they’ll call you back.
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