Know the labour law on dismissals

Today we spoke about dismissals and what to do when you've been unfairly dismissed. Below are some further details about dismissals:
 What is a dismissal?
An employer can take these options to dismiss a worker:
  • give the worker notice
This means the employer tells the worker to leave work after a certain period, like a week or more. The worker must get wages for the time he or she worked, plus any leave pay (if he or she has not taken all the leave that is due). The worker will not get notice pay.
Or
  • give the worker notice pay (this is also called payment in lieu of notice)         
This means the worker leaves immediately and is paid out instead of getting notice. The notice pay must be for as long as the notice time required, for example 1 week's pay instead of 1 week's notice. The payment must include the value of payment in kind. So the worker must get wages for the hours worked, plus any leave pay, plus payment in lieu of notice, or payment for accommodation (30% of basic wage).

What steps can be taken if there is an unfair dismissal?
If a worker thinks that the dismissal was unfair, in other words that the employer didn't follow fair procedures or there is not a 'good reason' for the dismissal, then the worker can try to challenge the dismissal. You (as the paralegal) should report this to a union if there is one. If there is no union or the union cannot help the worker, then you can try to help the worker to get his or her job back.
If a dismissal is found to be unfair, the worker will be able to get reinstated or re-employed, or get compensation money. Reinstatement means the worker gets the job back as if she or he was never dismissed. Re-employment means the worker gets the job back, but starts like a new worker.
The worker is likely to get compensation if:
  • the worker does not want the job back
  • the circumstances surrounding the dismissal would make the relationship between worker and employer intolerable
  • it is not reasonably practical for the employer to take the worker back
  • the dismissal is unfair merely because the employer failed to comply with a fair procedure, but there was a good reason for dismissal
The worker can get up to 12 months' wages as compensation for an unfair dismissal (procedural or substantive unfairness). Compensation for an unfair labour practice claim is limited to 12 months remuneration. If it was an automatically unfair dismissal the worker could get up to 24 months' wages as compensation.

For more information on labour laws go to https://www.labourguide.co.za/


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