[Question] Unfair dismissal - not happy with settlement

[Minnie14]

Good day,
I had a Con/Arb 26th on which my employer objected and did come to the conciliation then. The whole process was wrong. I was charged for gross dishonesty and unauthorized absence...for one day I mailed my manager early and said I have to take the day off (one day) I had to be in court I was in a car accident....if you do request I can send the detailed info about that, but still I feel its irrelevant because I did have leave and its personal. Manager said I have to bring court order next day...Ill skip all the fine detail, but almost a month later I rec a notive of disiplinary enquiry, I asked him them for time off to go to court to get the proof (as I did before on which he said he only need the case number that I did not have.) He gave me time off and I called my lawyer, met him at court and he gave me a stamped letter from court. I handed it in assuming all will be better. I also requested more info re charges 3 days before hearing (I rcved it 50 min before hearing). After everything I got dismissed - he said the doc is false and I wasn't where I said I was. I got fired!!!!!!!! I was in court, one day leave, letter was not false - fired immediately! This is after a lot of things (unfair labour) happened in a year and even the hearing itself is so not according to procedure. I went to ccma, had a lawyer, and I was under impression I could take matters further after that day. I signed a settlement for 2 months salary and letter of good service. I'm not happy!!!! I don't want that settlement. I did not know that would be the end of the line. No job!! Got fired for nothing getting that. There is nothing that can make up loosing my income, throwing away 8 years of work to get to the point where I was...2 children to provide for. For not doing anything wrong. What can I do? I worked there for a year and six months, please help. My lawyer says there is nothing I could realy do anymore and that settlement is the best I would get.

[Greig Whitton]

Not to sound unsympathetic, but why did you sign a 2 month salary settlement if you didn't want it???

[Justloadit]

From the description of the procedure for dismissal, it seems that your ex employer for some unknown reason did not really want you to be his employee, and looked for any reason to implement to get rid of you.

This is not what you want to hear :-
Whilst this seems a harsh reality, at the end of the day we all seem to forget, that it is the employers money and he may do as he sees fit, even in selecting who works for him - although the unions want to change this which may seem to be a fair request, but at the end of the day the union can not tell the employer where you must spend his money, it is yours not the unions.
Secondly, believe me you do not want to be employed by some one who does not want you there, it makes every ones life hell.

Typical severance pay is one week per year served, in you case the 8 years amounted to 8 weeks of pay or 2 months of pay, and that is what the CCMA had originally proposed.The CCMA can not force any other verdict, as this is what is in the LRA

[Minnie14]

Thank you, yes indeed I know he did not want me there, I had a year of trouble getting grined for anything. I signed cause I was under the impression that that's the procedures and then afterwards I couldve done a civil case harrassment, and the whole list of unfair labour that led to my dismissal.

[KristiKat]

you have a better case for harrassment, and getting money out of it,

than you could get a possible appeal on this "settlement"....

especially if the law was followed to the nine as loadit described it.

[KristiKat]

Just note that if you don't have sufficient proof....or evidence documenting the harassment, then the COURT can and will award costs AGAINST YOU...and you would have to carry the entire cost of the suit....

[Minnie14]

To me it looks like the labour law does not really protect the employee, if he was so unhappy he could've given me unpaid leave..., but to get fired for ONE day, plus he questioned tha validity of a letter from the court, stamped. Even my words were turned around which there was recordings made, that is different from the final result from chairman of my in house hearing.

[Marq]

Minnie - the best thing to do now, is rather spend all this negative energy in looking for a new job and turning it into a positive.
Look at it as a learning curve and rather than harping on this unfortunate incident and go forward.

[Greig Whitton]

To me it looks like the labour law does not really protect the employee

I can assure you that our labour laws are HEAVILY skewed in favour of employees. Should you ever run your own business one day and employ people, you will find that out first hand.

if he was so unhappy he could've given me unpaid leave..., but to get fired for ONE day, plus he questioned tha validity of a letter from the court, stamped. Even my words were turned around which there was recordings made, that is different from the final result from chairman of my in house hearing.

Obviously we only have your version of events, but assuming that they are accurate then your employer almost certainly dismissed you unfairly. Compensation awards for unfair dismissal can be higher than the severance pay that Justloadit described, however, you signed a settlement - thus, eliminating any possibility of a higher compensation award.

From what you have described, you signed the settlement on the advice of your attorney. Was that good advice? Again, much depends on other details that we aren't privy to. However, if you worked for that employer for 8 years and if the dismissal circumstances were as bad as you described, then I suspect that your attorney took the easy route and pushed for a settlement instead of fighting for compensation for which you may have had a very strong business case.

Nothing that you have shared thus far leads me to believe that you have a case for harassment or a civil lawsuit. And even if you do, signing what I assume was a full and final settlement may preclude you from pursuing it.

[Justloadit]

To me it looks like the labour law does not really protect the employee, if he was so unhappy he could've given me unpaid leave..., but to get fired for ONE day, plus he questioned tha validity of a letter from the court, stamped. Even my words were turned around which there was recordings made, that is different from the final result from chairman of my in house hearing.

To the contrary, the LRA is very weighted towards employees, and not employers.
This is one of the single most reasons that companies do not want to employ, simply because they are always penalised even when the the employees are at fault.

Your case was a situation, that no matter what you tried, there will always be a situation, in which the employer would have used to get you out of there.
Even if the employer retrenched you, or even if it was an unfair dismissal, the most you will get is one week for each year served. That's what was awarded to you.
The commissioner at the hearing does tend to favour the employee, and would have commented, had the offer made not the general guidelines for the situation concerned.

[Greig Whitton]

Even if the employer retrenched you, or even if it was an unfair dismissal, the most you will get is one week for each year served. That's what was awarded to you.

Er ... no. Compensation for unfair dismissal can be up to 12 months' salary, regardless of the period of employment. If a dismissal is deemed to be automatically unfair, then the compensation can be as much as 24 months' salary.

It's not just the Labour Relations Act that is heavily weighted towards employees. The Basic Conditions of Employment Act sets out minimum employment terms, so employers can't just treat employees as they please. The Employment Equity Act introduces mandatory employer conduct standards by prohibiting unfair discrimination, as well as mandatory employment demographic targets for medium and large companies. Don't even get me started on the forthcoming amendments to these laws, or the all-new Employment Services Bill that will be signed into law soon ...

[Dave A]

I signed a settlement for 2 months salary and letter of good service.

So it was settled at the conciliation stage then, and never went to arbitration.

Can't really blame the LRA or the CCMA for the result then, and no, you don't get a second bite at the apple (which I find hard to believe wasn't mentioned anywhere along the way, by the arbitrator and/or your lawyer).

Interesting that your lawyer suggested this was the best he/she could do for you. Either really bad counsel or you really didn't have much of a case.
Again, hard to blame the LRA or the CCMA for either possibility.

[Justloadit]

I had quoted based on a recent case where unfair dismissal was claimed for 4 years service. Not sure if there is a vast difference in the final procedure, excluding the circumstances running up to the CCMA conciliation hearing.
In a case approximately a year ago, an employee absconded due to health reasons, and never informed the employer, approximately 6 months later, he approached the CCMA and claimed unfair dismissal, and was awarded 8 weeks wages for unfair dismissal. (Note - the employer was negligent in attending the CCMA arbitration, but did follow procedure in attempting to contact the employee for confirmation of absence).

[adrianh]

I think that there is a hell of a lot more to this story. If you were a good employee then the employer would have done his level best to keep you. If you got fired over one day then that one day must have been the straw that finally broke the camels back. I am also an employer and I take a lot of $h1t from employees. It takes a hell of a lot for an employer to finally toss an employee at the risk of being taken to the CCMA

[Minnie14]

Thank you all for the replies. There is couple things I might have expressed incorrect. We do have a excellent labour law, the people at ccma is fabulous and very helpful, the commissioner was excellent. My lawyer said it is a very good offer! I was employed for just over a year, before that 8 years, same position at another company. I did have a very strong case, 100 % unfair dismissal, but yeah, wrong decisions.....uninformed. The lawyer was great. But there was misunderstandings and mostly I am not familiar at all with this which I know would not stand anywhere. Because I did have a lawyer.....