South Africa Law
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I worked in the DRC for an International firm based in Australia. I am a South African Resident. I was unfairly dismissed in that I was woken at 4am in the morning without warning and told to pack my things and leave. I was put on a plane and sent home. I have reported the matter to our local CCMA for conciliation, what can I do?
Also, after registering the case with the CCMA they appointed a South African law firm to represent them. In there so called "evidence" they attached two fictitious warnings, that can be proven as false. They also Claim that SA has no jurisdiction over any international firms, however, the CCMA is a member ACDS (African center for dispute settlement). I was also given shares by the company and have that in writing, but there is no mention of any form of payment thereof or compensation for theactions. Please advise as to what route I should take, as this has caused me serious financial damage.
Was your contract with the Australian parent company directly or via a subsidiary in the DRC?
My contract was from the Australian Company who represents the Company in the DRC. The employement agency is in SA. I need to find out if I have any grounds of claiming unfair dismissal based here in SA through the CCMA, as the international labour law states that I can seek conciliation in the event of unfair dismissal?
According to the facts presented, there are three jurisdictional claims in accordance with strength of claim:
All three countries are signatories to the Termination of Employment Convention, 1982.
The convection is the minimum standard required in the termination of employees and in the absence of applying specific national legislation, the articles of the convention are the best guide as to the legal principles to be applied.
Articles 7&8 are very much in accordance with the South African Labour relations Act.
The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity
This means that the company, procedurally needed to be afford the opportunity to address allegations. If there was not justification for such opportunity to be afforded the employee, then the dismissal is procedurally unfair.
1. A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.
If an employee is not afforded such appeal against termination (by way of being ordered out of the country) then the dispute resolution bodies have a duty not to acquiesce in the employers deliberate evasion or non-compliance with the conventions articles.
If the CCMA is able to establish jurisdiction, then there is every reason that the circumstances of the dismissal and potential evasive measures employed would strongly point to unfair dismissal by process alone, not yet looking at the merits of any reasons offered after the fact.
Should it be proven that the documents tendered as you say have been contrived to justify the dismissal and given that they can be proven to be false, then charges to that effect may be laid against the company's director and against the company's officials tendering the documents as proof. This would be a South African criminal matter.
In summary, if the facts presented can be substantiated and if the CCMA is able to establish jurisdiction over the case, then the protects for success are reasonably good.
I trust this answer is of value to you.
In referencing the legal principles for employees of Australian Companies I got the following response from Fair Work. I append it to your question just for your information, it does not form part of my legal expertise. Good luck in your case:
You can lodge a complaint with the Fair Work Ombudsman in four ways:
For more information on the Fair Work Ombudsman complaints handling process please see the link below.
Making a complaint
According to the Act, an unfair dismissal occurs when the employee's dismissal is 'harsh, unjust or unreasonable'. A person has been unfairly dismissed if Fair Work Australia is satisfied that the:
For further information regarding unfair dismissal, please contact Fair Work Australia on 1300 799 675 or visit http://www.fwa.gov.au/. "
Thank you very much for your efforts!! Is there any way that I can download some form of proof that SA, DRC and AUS have singed the convention, and if so can youplease supply me the link. I'm happy with all the facts and thank you for your assistance in this matter!!!
Sure no problem; www.ilo.org/ilolex/cgi-lex/ratifce.pl?C158 (list of all signatories at the ILO).
All the best with your endeavours.
I see DRC and AUS, but not SA. Is it on a different page or can you mail me the docs if you dont mind. [email protected]. I will accept your aswer in two minutes. Thanks for all your help.
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