CCMA and automatic unfair dismissals

[Johnone]

Just out of interest, I understand that being dismissed for being pregnant or going on a protected strike is automatically declared as unfair and you can receive up to 24 months' salary as compensation at the CCMA.

Now the above two is easy to prove at the CCMA.

But how do you prove being discriminated against by your employer, which is also an automatic unfair dismissal?

Say you are discriminated against based on your age. You are 30. Your colleague who started with you is 22. (You underwent a career change). You both were employed under a probation period. But at the end of the probation, your employer dismisses you and not your colleague, even though your performance is the same.

Your employer did bring up your age when dismissing you. Saying you are older and have more life experience, and thereby implying you should perform better.

So you have verbally heard your employer discriminate based on your age by bringing your age into his final analyses to dismiss you. But how do you prove it?

The same with religion. Let's use the above scenario, but the two employees are the same age. You have a certain religion, but your colleague has a different religion, which happens to be the same of that of your employer. Your employer dismisses you at the end of your probation period, but not your colleague.

How do you prove religion played a factor in his final decision to dismiss you? Especially if you know that your employer favours people of his own religion at the workplace.

(I know the above 2 scenarios shows procedural unfairness in the dismissal, but I am interested in knowing how to prove automatica unfair dismissal based on discrimination by the employer).

tl;dr: how does an employee prove unfair discrimination by his employer at the CCMA, when there is no written or tangible evidence, even though the discrimination happened.

 

[bchip]

Maybe the real question is, do you really want to prove it?
Even if you get it right to prove it you still dont have a future at that employer,
you will constantly have to go against the trend and prove to them you are better.
Sometimes its just better to move on, move to a place that appreciates you more,
unless this job is REALLY worth fighting for, but in my experience there are very few of those.

 

[bchip]

But to answer the question its a matter of he said, she said and then if they admit to it in a testimony.
As the only other bit of evidence is probably the reasons for the dismissal on the HR forms,
which they will also have to show.

 

[supersunbird]

I doubt you have any claim since it was during/at end of probation period that this occurred.

 

[Electric]

Sounds like you're preoccupied with crap and not doing your job tbh tbf tbh, imo.

 

[TehStranger]

I doubt you have any claim since it was during/at end of probation period that this occurred.

This. The company didn't dismiss you, they didn't renew your contract at the end of the probation period. They chose to renew the other persons, simple as that.

We had a completely useless employee take us to the CCMA for a few things (all untrue). One was unfair dismissal. The commissioner asked us why we weren't contesting the unfair dismissal. We replied that "We can't content something that didn't happen. Employee X wasn't dismissed, we didn't offer them a new contract after the probation period."

The commissioner dismissed all of Employee X's concerns.

 

[sargentbash]

I would take it the ccma do you have any documentation regarding anything you have said? he must give you the demissal in writing and he needs to prove why he didnt fire the other guy? if you get what i am saying all so get a labour layer good luck

 

[Johnone]

I doubt you have any claim since it was during/at end of probation period that this occurred.

I think you need to read up on what the LRA has to say about probation period and what constitutes an employee.

 

[Johnone]

Sounds like you're preoccupied with crap and not doing your job tbh tbf tbh, imo.

Sounds like you don't understand what a hypothetical scenario is.

Besides, this is just for information purposes. Tomorrow you get discriminated against and then what do you do?

 

[supersunbird]

I think you need to read up on what the LRA has to say about probation period and what constitutes an employee.

OK, well let us know how it goes...

 

[Johnone]

OK, well let us know how it goes...

Just fyi, regarding probation: http://www.labourguide.co.za/most-recent/872-probation-is-not-the-easy-way-out-for-employers

 

[acidrain]

My question is, are you sure the person is being discriminated against?

For example: Does the 22yr old and the 30yr old have the same experience in the specific field they are tasked to do? If not the next question is asked: How is someone who is fairly new to the field able to perform similarly to someone with far more experience?

 

[noxibox]

Like constructive dismissal it is extremely difficult to prove. However an employer cannot simply dismiss an employee for alleged performance deficiencies at the end, or any time during probation, unless they can show they have raised any problems with performance, worked with the employee to rectify the issues and the employee has failed to improve.

 

[noxibox]

The commissioner asked us why we weren't contesting the unfair dismissal. We replied that "We can't content something that didn't happen. Employee X wasn't dismissed, we didn't offer them a new contract after the probation period."

The commissioner dismissed all of Employee X's concerns.

I'd say you're lucky because your reply is basically a load of horse pucky.

 

[rza]

Just out of interest, I understand that being dismissed for being pregnant or going on a protected strike is automatically declared as unfair and you can receive up to 24 months' salary as compensation at the CCMA.

Now the above two is easy to prove at the CCMA.

But how do you prove being discriminated against by your employer, which is also an automatic unfair dismissal?

Say you are discriminated against based on your age. You are 30. Your colleague who started with you is 22. (You underwent a career change). You both were employed under a probation period. But at the end of the probation, your employer dismisses you and not your colleague, even though your performance is the same.

Your employer did bring up your age when dismissing you. Saying you are older and have more life experience, and thereby implying you should perform better.

So you have verbally heard your employer discriminate based on your age by bringing your age into his final analyses to dismiss you. But how do you prove it?

The same with religion. Let's use the above scenario, but the two employees are the same age. You have a certain religion, but your colleague has a different religion, which happens to be the same of that of your employer. Your employer dismisses you at the end of your probation period, but not your colleague.

How do you prove religion played a factor in his final decision to dismiss you? Especially if you know that your employer favours people of his own religion at the workplace.

(I know the above 2 scenarios shows procedural unfairness in the dismissal, but I am interested in knowing how to prove automatica unfair dismissal based on discrimination by the employer).

tl;dr: how does an employee prove unfair discrimination by his employer at the CCMA, when there is no written or tangible evidence, even though the discrimination happened.

It is not easy to prove that the reason for your dismissal is "unfair discrimination", unless the employer was so negligent that you have reasons in writing or someone can testify that the employer said the reason for your dismissal was related to "unfair discrimination". But it's not impossible as many people have succeeded.

If the employer really did the below:

Your employer did bring up your age when dismissing you. Saying you are older and have more life experience, and thereby implying you should perform better.

Then you have a good case, because the employer did mention age as the reason for your dismissal. It would be even better if there witnesses who heard the employer say that, or the employer said this in writing. If not, then all is not lost as your credibility compared to that of the employer will be tested, and on a balance of probabilities then you can be believed.

If a contract is not renewed after the probation period then it is dismissal, and you can claim that the dismissal was unfair and lodge a referral with the CCMA. If the employer didn't complain about your performance, and give you enough time and training to improve, then you will win the case and can be reinstated or be compensated with 12 months salary.

Unfair discrimination based on religion is also an automatically unfair dismissal, and needs to be proven the same as with "age discrimination". Of course it's not easy because an employer can disguise the real reason for dismissal, but CCMA commissioners and Labour Court judges are aware of this fact and they take it into account. All you need to do is make a prima facie case and the employer will be forced to reply, so you don't need to have a rock solid case before you can even be taken seriously because it's a known fact that employers can disguise unfair discrimination. Which is why we have direct and indirect discrimination, where direct is more easy to prove while indirect is very difficult to prove as its meant to be disguised.

This past weekend I helped a friend refer a case to the CCMA for automatically unfair discrimination related to "social origin" and "status". He has a good case, but the employer disguised the real reason for a dismissal and said it was for misconduct. So my friend has to prove that a misconduct charge was merely a covery-up and the real reason is unfair discrimination. In this case the employer has all the information and witnesses, so my friend is forced to allege and show that his allegations are not without merit but are actually reasonable and possible. He also has to show that the misconduct charge doesn't hold but it was convenient.

 

[The_Ogre]

Some of the replies in here really make me go :wtf:

Based on the law, if taken to the CCMA, both hypothetical scenarios painted by the OP would get the employer severely financially penalised.

 

[doubletrouble]

During probabation, the employer has to consult with you regarding your posiition.. They need to inidcate to you during this time, where you need to improve and give adequate trianing to allow you to improve. If they have not done these things, and just let you go after the probation period, it would be an unfair dismissal.

 

[rza]

During probabation, the employer has to consult with you regarding your posiition.. They need to inidcate to you during this time, where you need to improve and give adequate trianing to allow you to improve. If they have not done these things, and just let you go after the probation period, it would be an unfair dismissal.

Correct. Based on the scenario provided, the situation becomes even worse because they failed to make the employment permanent based on her age, which is unfair discrimination and the compensation is 24 months' salary.

 

[noxibox]

It is very hard to prove just like constructive dismissal. If you're in a position to easily find another job you're better off not wasting your time trying to fight them.

I doubt you have any claim since it was during/at end of probation period that this occurred.

People often have this misconception, but employers do need a valid reason for dismissal during the probation period in South Africa. It doesn't matter what the employment contract might say.

 

[noxibox]

During probabation, the employer has to consult with you regarding your posiition.. They need to inidcate to you during this time, where you need to improve and give adequate trianing to allow you to improve. If they have not done these things, and just let you go after the probation period, it would be an unfair dismissal.

Exactly right. If their claim is that your performance was inadequate and they can't prove they took the steps required by law, then you would have a case. I would still say that even though you could get a big payout it might still be best to just move on. Also consider that depending on the type of work you do the industry might be small enough that word gets around that you went to the CCMA and you'll struggle to get another job.