# Regulatory Compliance Category > Labour Relations and Legislation Forum > [Opinion] Unfair dismissal or what?

## xBrightDiamondX

Hi all
I recently got fired on the spot without notice during my probation consultation session on 25 June 2015. I received a notice to attend this session the same day i came back to work from sick leave on the 23rd June 2015. Reasons on the notice were "Recent poor work attitude and work performance. 

!. The company representative made a complete false statement. They claimed i worked in a certain department in the company where i never worked, They also claimed that i earn more hourly rate than actually stated on my payslip and said that i was supposed to earn less than half of that. I have witnesses to this.

2. The 2 witnesses they used to testify against me, their statements were both related to 2 days after the     date of the notice i received.   

3. I was on a probation contract for 6 months that were terminated by this session 2 months prematurely.

I have been to the CCMA and i was told this is an unfair dismissal, they proceeded to contact the company whom in return told CCMA that i were demoted from and artisan to an assistant. I am totally unaware of this.

As far as i understand this company that i worked for is well known for hiring and firing as it please them.
I also have the complete Probation counseling session recorded which i would like to use as evidence shout it be allowed or required.

What is it that i can claim for in this case with CCMA against my employer?
Can i sue the company representative for defamation for giving false statements about me?
The CCMA did mention they can with evidence get me to return to my work on a permanent basis, not back as in probation but i fear work conditions and situations will worsen.
Any help?

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## HR Solutions

I would like to comment ..... not on whether it is fair or unfair of the company but on my own experience being in the Recruitment industry and maybe it will help you.

From experience - a company always has a reason for getting rid of someone and the victim sometimes never realises what they have done wrong or the reason.  But the people that seem to have this problem always seem to have baggage e.g. past history of time taken off or being sick without reason or ccma cases etc etc etc. for the same ole same ole reasons.  A person taking too much time off especially in their probation tends to not make it and does not last long at companies.  This in turn reflects badly on your cv and jeopodizes future jobs because it shows you are a job hopper.

Just for interest sake but when you go for another interview at another company don't mention ccma to them.  It sends a message to them and they might just steer away from you.  Perhaps if you go into probation again try not to take time off, even try not to get sick and try go out of your way and work over and beyond your scope of employment.  Employers see this and respect this.

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## Greig Whitton

> What is it that i can claim for in this case with CCMA against my employer?


Reinstatement is the preferred remedy in cases of unfair dismissal. However, compensation is also a possibility and is capped at 24 months' salary for dismissals that are automatically unfair (e.g. dismissing an employee for being pregnant) or 12 months' salary for all other cases. 




> Can i sue the company representative for defamation for giving false statements about me?


Probably. Don't bother.




> The CCMA did mention they can with evidence get me to return to my work on a permanent basis, not back as in probation but i fear work conditions and situations will worsen.Any help?


Reinstatement is preferable but not mandatory. If you can show that the working relationship has been irreparably damaged and/or that working conditions are intolerable then the CCMA would likely award compensation only.

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## xBrightDiamondX

Interesting but the accident was unavoidable with multiple injuries and so were a severe throat infection, i get what you saying and this will be my first time ever dealing with the ccma and an employer like this.

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## Dave A

The interesting thing about having a probation period in place is the employer is taking on the responsibility to train the employee during this period. You cannot dismiss on the basis of performance until the end of the probation period unless there is clear evidence of *no* improvement despite training and counselling interventions. Similarly, I foresee a problem with demoting an employee before the end of the probation period.

People make the mistake of thinking having a probation period makes dismissal easier. If anything, it makes it harder. The main upside is it normally involves a very short notice period (which can also be a double edged sword).

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bones (06-Jul-15)

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## xBrightDiamondX

> The interesting thing about having a probation period in place is the employer is taking on the responsibility to train the employee during this period. You cannot dismiss on the basis of performance until the end of the probation period unless there is clear evidence of *no* improvement despite training and counselling interventions. Similarly, I foresee a problem with demoting an employee before the end of the probation period.
> 
> People make the mistake of thinking having a probation period makes dismissal easier. If anything, it makes it harder. The main upside is it normally involves a very short notice period (which can also be a double edged sword).


Good morning. You see in my case my employer fabricated a false story as a reason to have me dismissed, i have witnesses to that as well as a recording.
The lawyer whom was the Chairman is also in on it, CCMA called him where he told CCMA that i have been demoted. That as also the first time that i have heard of it.
On another occasion about a month ago about 15 of us were called to the board room where the company operations manager told us we were "Nominated" by our supervisors or certain supervisors as people who is not throwing in their weight and a whole lot of other things. We were threatened that it will be the end of our contract if he had to see our faces one more up in the board room.
The main problem is they are over staffed, just before i left i heard they need to let 9 people go. This company also have a history of hiring and firing as the pleases. 
I have also emailed the Lawyer that were the Chairman of the Counsel session and asked him for the minutes  of the session. I got no response from him either.

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## HR Solutions

> i have witnesses to that as well as a recording.


Just as a matter of interest - why did you record this meeting ?
You must have either suspected something was up due to something happening beforehand or for some reason !

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## adrianh

Well then, they clearly don't want your ass around so what are you trying to accomplish?

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## xBrightDiamondX

> Well then, they clearly don't want your ass around so what are you trying to accomplish?


Just getting advice here but clearly not from you

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## xBrightDiamondX

> Just as a matter of interest - why did you record this meeting ?
> You must have either suspected something was up due to something happening beforehand or for some reason !


Similar things happened to other people at the same company, yes i was suspecting the same was going to happen to me which unfortunately did

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## Citizen X

> Hi all
> I recently got fired on the spot without notice during my probation consultation session on 25 June 2015. I received a notice to attend this session the same day i came back to work from sick leave on the 23rd June 2015. Reasons on the notice were "Recent poor work attitude and work performance. 
> 
> !. The company representative made a complete false statement. They claimed i worked in a certain department in the company where i never worked, They also claimed that i earn more hourly rate than actually stated on my payslip and said that i was supposed to earn less than half of that. I have witnesses to this.
> 
> 2. The 2 witnesses they used to testify against me, their statements were both related to 2 days after the     date of the notice i received.   
> 
> 3. I was on a probation contract for 6 months that were terminated by this session 2 months prematurely.
> 
> ...


 You do have valid grounds to pursue unfair dismissal with the CCMA!


Firstly, there are only three grounds that an employer may dismiss an employee, namely, misconduct, incapacity and operational requirements.

1.    In your case the employers grounds are incapacity, and in particular, poor work performance during probation;
2.    Schedule 8(LRA) places  a demand on employers to do certain things in practice, before a dismissal;
3.    There must be sufficient training, guidance and counselling with a view to enable the employee to perform his duties satisfactorily during a probabtion period;
4.    The employer must make it very clear to the employee on probation what the work performance standards are and where specifically the employee is not meeting these standards, for instance, if a data capturer, on probation, has the task of successfully capturing and processing 30 vehicle finance applications  per day, and the employee only processes 15, there is a discrepancy between actual results and desired results. The employer must make this clear;
5.    The employer must then assist the employee by training to meet this work performance standard;
6.    The employer must then provide a date for review of work performance and measure the employees performance during this period

The relevant statutory provision is Schedule 8, article 8_(1)_, which I include here:


*Incapacity: Poor work performance* 
*Probation* 
(1) (a) An employer may require a newly-hired _employee_ to serve a period of probation before the appointment of  the _employee_ is confirmed. 
(b) The purpose of probation is to give the employer an opportunity to evaluate the _employees_ performance before confirming the appointment. 
(c*) Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees, is not consistent with the purpose of probation and constitutes an unfair labour practice.* 
(d) The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the _employees_ suitability for continued employment. 
(e) *During the probationary period, the employees performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.* 
(f) If the employer determines that the _employees_ performance is below standard, the employer should advise the _employee_ of any aspects in which the employer considers the _employee_ to be failing to meet the required performance standards. If the employer believes that the _employee_ is incompetent, the employer should advise the _employee_ of the respects in which the _employee_ is not competent. The employer may either extend the probationary period or dismiss the _employee_ after complying with subitems (g) or (h), as the case may be. 
(g) The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve. 
(h) An employer may only decide to dismiss an _employee_ or extend the probationary period after the employer has invited the _employee_ to make representations and has considered any representations made. A _trade union_ representative or fellow _employee_ may make the representations on behalf of the employee. 
(i) If the employer decides to dismiss the _employee_ or to extend the probationary period, the employer should advise the _employee_ of his or her rights to refer the matter to a _council_ having jurisdiction, or to the Commission. 
(j) Any person making a decision about the fairness of a dismissal of an _employee_ for poor work performance during or on expiry of the probationary period ought to accept reasons for _dismissal_ that may be less compelling than would be the case in _dismissals_ effected after the completion of the probationary period.

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bones (06-Jul-15), Dave A (04-Jul-15), tec0 (06-Jul-15)

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## adrianh

> Just getting advice here but clearly not from you


Ok, let me put it another way: I agree with HR, companies get rid of unsuitable people during their probation period. They clearly do not want you there.They're not going to give you your job back so all you stand to gain is a couple of months salary, if you win....which I doubt you will. So why are you wasting your energy on this?

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## bones

> Ok, let me put it another way: I agree with HR, companies get rid of unsuitable people during their probation period. They clearly do not want you there.They're not going to give you your job back so all you stand to gain is a couple of months salary, if you win....which I doubt you will. So why are you wasting your energy on this?


my brother had the same thing happen to him 
sh_t hit the fan he got the boot thing is he 
got bills to pay and finding a job isnt easy

so if you can get a few months pay it is a few 
month he could use to find another job that is 
kind of obvious

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## adrianh

> my brother had the same thing happen to him 
> sh_t hit the fan he got the boot thing is he 
> got bills to pay and finding a job isnt easy
> 
> so if you can get a few months pay it is a few 
> month he could use to find another job that is 
> kind of obvious


It's not obvious, it's short sighted. You have to remember that the CCMA case remains a blot against your name forever. Each and every time you go for an interview you will be asked to explain what happened. Yes of course we all want money but at what cost?

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## tec0

Welcome to the real world or so people will claim. See our records that includes the fact that you where fired get accessed by labour companies, regardless if it is labour higher for labour broker. Based on that you may get burned. That said if you can proof it that company will have hell to pay as it it is not illegal to go to the CCMA to start with. Basically it is discrimination and they are very careful that you will never know what was accessed from your life. 

Lately as seen both in real word and on this forum they check for: your record both criminal and if you have history with the CCMA then they also test you for dyslexia and other so called problems. Once they are done you will be lucky to to get a job ever again. Despite the many laws that is suppose to protect us against such intimidation, discrimination and downright violation of privacy things happen behind closed doors and you simply don't get picked for an interview or you make it at the interview stage but it stops there. It is why this system exist and is used by many employers sadly. 

If you are really lucky or your skills are really impressive you may get employment again. There is always the chance that a employer doesn't care about your past. And they do exist. It is why there is a slow movement starting in unions and so on to stop people from checking your past and the only information available is your qualification level. This would help to stop this unseen and frankly disgusting practice. Yes the employer has the right to protect itself and i totally agree with that but in the same breath so do the employee. 

Sometimes good employers will give you an opportunity and i for one hope this will happen more and more as the job market is really tight.  

Sadly you are about to get a head on collision with a view demigods and they frown upon the very fact that you asked for help to begin with. i will not name them but you will figure it out as you continue. That said you will also get a lot of good advice from other members still fighting the good fight. 

Best of luck to you, i really do hope you make it big and learn form the processes so that you can help the next person facing your problems. Knowledge and first hand experience is a BIG help to many so please keep us up to date  :Smile:

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## HR Solutions

Yep .... so the answer is - Keep you ass clean.

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## Justloadit

Just as an employee has a right, so does the employer.

As the employer, one has to take all the risk, both financially and other responsibilities with the employment of a person, SEIFSA/MIGFA/MIBFA/NUMSA/COSATU or what ever union is in your sector, and there is no doubt that at the end of the day, whilst the employee thinks that he is always short changed, this is not the case, the employer usually is the one holding all the expenses because the employer decided to employ a person.

There is no doubt that the employer, who at the end of the day is taking the highest risk, decides with whom they want to take a chance with, and in today's current climate, wants to be picky and choosy - does he not have the right?

Also, an employer, will probably look to see if any manufacturing process can be automated, even if at a higher cost in order to avoid having an employee and the responsibilities that come with it. 
Remember that there is also a customer involved, who quite frankly does not care about the labour issues, he just wants his product working and delivered on time, at the price quoted.

There just is no meat left to cover the bonus, 13th check, sick leave, pension/provident fund/Sick fund,Bargaining council fees and other hidden expenses whcih are created by having an employee, such as tea/coffee, sugar milk, pilfering, shoddy workmanship, breaking of tools/equipment, etc

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## HR Solutions

You are so right Justloadit .  The employer is the one taking the biggest risk, therefore must make the right decision when hiring people.

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## adrianh

If it was up to me I wouldn't employ anybody. The most inefficient manufacturing device is a human!

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## Citizen X

There are fallacies here: Firstly in terms of the Basic Conditions Of Employment Act, an employee has the right to request a certificate of service, which does not disclose the reason for the termination of employment, secondly, if the CCMA declares that a dismissal was either substantively unfair or procedurally unfair or both, then the employee is completely vindicated and therefore, the fact of dismissal cannot be held against that employee. 

My two cents: Don’t give up. No matter what, there is an employer out there that will value you and treat you with dignity and respect.

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## xBrightDiamondX

Okay my CCMA conciliation was this morning, the company representative came very unprepared but never the less we continued. On one stage myself and the company representative were left alone to discuss a settlement, he told me a very interesting thing that i was totally unaware of. He said if we dont settle today, there will be another hearing called Nova or something where everything is scrapped, evidence and testimonies then they do everything over from scratch with new witnesses and testimonies? Can this be true or not?
I refused the settlement of R 5000 and a fresh and clear reference which is a bit of an insult.
At a stage i spent time discussing the settlement alone with the Commissioner and in a way he tried to convince me not to proceed and walk away. Does anyone have an idea on what i should do further? I really need your advice here.

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## sterne.law@gmail.com

Your case will go to arbitration.
Your NOVO is part of a fancy term meaning a new hearing.
You will getcanother chance to settle before the arbitration, this will depend on how strong your case is.

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## Citizen X

You must have been issued with a certificate that states the the matter remains unresolved. Arbitration doesn't happen automatically, you need to apply for it, by filling out the relevant forms, serving them on the employer, take proof of service along with you to the CCMA. An arbitration hearing will then take place.

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flaker (23-Jul-15)

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## xBrightDiamondX

> You must have been issued with a certificate that states the the matter remains unresolved. Arbitration doesn't happen automatically, you need to apply for it, by filling out the relevant forms, serving them on the employer, take proof of service along with you to the CCMA. An arbitration hearing will then take place.


Good morning, the Commissioner only made notes that the matter remains unresolved, the company representative told the commissioner that he will take it further with me in trying to resolve it and come to a settlement. Myself and the company representative exchange numbers and he was supposed to call me with a more decent offer but failed to make contact. I was also not issued with any certificate or any form of documentation whatsoever.
In my first application to the CCMA i did however sign that the case should not be arbitrated in the same day.

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## Dave A

> the company representative told the commissioner that he will take it further with me in trying to resolve it and come to a settlement. Myself and the company representative exchange numbers and he was supposed to call me with a more decent offer but failed to make contact.


It seems you are being thoroughly worked over by a master in their craft.

A thought on the "start from new" nature of arbitration nowadays - 

I attended last year's round of Labour Law Reports done by Brian Van Zyl where aspects of (I seem to recall it was) _Sidumo_ kept coming up. The primary point to note was that the arbitration starts from new, as already covered above. However, it was when the discussion got into the area of consequences that things got interesting.

One of those consequences, he suggested, is the employer is wasting their time building a huge pile of evidence of substantively fair process and outcome as the vast majority of this time and effort is now worthless at arbitration. Accordingly Van Zyl suggested when it comes to a disciplinary enquiry, you may as well keep the process really simple:
A complainant submits their complaint. 
Someone is appointed to decide the complaint.
The employee is given an opportunity to give their response to the complaint.
The person conducting the enquiry makes a decision.
Everyone is notified of the result.
Done.

The point was if the employee isn't satisfied, it goes to arbitration and you have to start from scratch anyway - so don't get overly bogged down in the process first time around.

I found it an interesting notion, and I also couldn't help thinking there may be an impact in this instance too. After all, BrightDiamond is relying to some extent on the (allegedly false) evidence presented at his original enquiry as part of his case.

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## Richard S

Good morning All, 
As of 1 March 2016 I sold my business. My wife who had worked in the business for the past 15 years (age 66 - does it make a difference?) - was asked by the new owner if she would like to stay on in a half day position, to which she agreed. There has been no discussion regarding wages and no contract offered.

 Unfortunately the new owner and my wife simply did not get on together and after a heated discussion regarding work procedures yesterday, I received the following email (my wife and I share the same email address) , sent at 7.57  pm -Dear Richard,  I had a chat to Nikki today it seems that we will not see eye to eye going forward.
She is welcome to collect all her personal items between 11 and 12 tomorrow and hand in "her" office keys to me personally.

Is there any recourse? During the handover period I was asked about salaries and indicated that four employees salaries were due for an annual review in March and made some recommendations. In my wife's case I said that she had been taking home R 15000/month plus cell phone and vehicle running costs and when pressed said that I guessed R 7500 to R 8000 would be fair wage for half days and left it at that. But as I said no amounts were discussed with her.

Fired without being hired - instantly and by email!

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## HR Solutions

You say




> There has been no discussion regarding wages


But then you say this:




> when pressed said that I guessed R 7500 to R 8000 would be fair wage for half days


So there was a discussion about wages ?? You say "when pressed" .... so clearly they did talk about it, you avoided it and then eventually discussed it.
I would never discuss any wage/salary with a spouse - It really has nothing to do with them - I will only discuss it with the employee directly.

Personally R7500-R8000 is a very good half day wage.  Unfortunately you made the mistake not tying down a contract.  It is a tricky one when a new owner takes over - are they going to get on with the existing staff ? You sold the business beginning of the month.  Clearly they are looking at things differently and realise that certain people will not fit in with their new plans.  What you would you like them to do as she really has only worked for them for 3 odd weeks ?

Did she work every half day ?

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## sterne.law@gmail.com

On a sale of business all staff contracts are carried over.
The new owner "steps into the shoes" of the previous owner.
Effectively your wife entered into new terms, but the period of employment is as of the day she commenced.

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## Richard S

Hi HR, the only discussion was a general discussion/recommendation from the outgoing owner to the new owner. My wife was never party to it and no wage offer was made by the new owner. Actually that is incorrect! At some point the new owner told my wife that he could not pay her R 15000/month, to which she replied that she did not expect that for a half day job. In fact she worked about 7 hours a day on average.

Hi Sterne, Regrettably we never bothered with a contract, after all she is my wife.

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## sterne.law@gmail.com

The absence of a written contract is not an obstacle.
The employment relationship is established through the act.

On an aside, it may be the manner that this was done, rather than the financial aspect, that irks.
Often, inretrenchments for example, the underlying issue is the hurt in the manner that things are doen. The employee accepts retrenchments were needed but feel rail roaded and treated disrespectfully and without dignity.

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## Richard S

When I sold the business I was a little surprised that the new owner had asked my wife to stay on and even more surprised that she accepted, because that was never part of our original plan. When my wife started having misgivings about the way events began unfolding I told her that if it was making her unhappy she could still resign with a weeks notice, which she was about to do anyway, so the job is no big loss.
You are quite right of course, it is the manner in which it was done more than anything else, although I must add that so far there has been no payment of any kind, which adds insult to injury.

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