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inciteadvisor
inciteadvisor, Commercial Lawyer
Category: South Africa Law
Satisfied Customers: 1610
Experience:  B.Com LLB Registered Corporate lawywer
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International Labour Dispute

Customer Question

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. 

Submitted: 2 years ago.
Category: South Africa Law
Expert:  inciteadvisor replied 2 years ago.

inciteadvisor :

Was your contract with the Australian parent company directly or via a subsidiary in the DRC?

Expert:  inciteadvisor replied 2 years ago.
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Expert:  inciteadvisor replied 2 years ago.
Was your contract with the Australian parent company directly or via a subsidiary in the DRC?
Expert:  inciteadvisor replied 2 years ago.
Would you like me to refer you to an Australian Law expert to assist you to consider if Fair Work regulations apply to employees of multinational companies working in foreign territories?
Customer: replied 2 years ago.

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?

Expert:  inciteadvisor replied 2 years ago.

According to the facts presented, there are three jurisdictional claims in accordance with strength of claim:

  1. DRC at the country where employment took place
  2. Australia as company is based in Australia
  3. South Africa as the individual was a South African national

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.

 

 

Article 7

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.

 

 

Article 8

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.

 

Expert:  inciteadvisor replied 2 years ago.

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:

 

  • By downloading a copy of the complaint form and posting to the Fair Work Ombudsman, Complaints Assessment Team, GPO Box 2567, Adelaide SA 5001; or
  • By downloading a copy of the complaint form and faxing to (02) 6250 4480; or
  • By contacting the Fair Work Infoline on 13 13 94 and requesting a complaint kit be mailed to you; or
  • In person at one of our 26 offices across Australia.

 

For more information on the Fair Work Ombudsman complaints handling process please see the link below.

Making a complaint

 

Unfair Dismissal

 

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:

 

  • Person has been dismissed; and
  • Dismissal was harsh, unjust or unreasonable; and
  • For small businesses, dismissal was not consistent with the Small Business Fair Dismissal Code; and
  • Dismissal was not a case of genuine redundancy.

 

For further information regarding unfair dismissal, please contact Fair Work Australia on 1300 799 675 or visit http://www.fwa.gov.au/. "

 

Customer: replied 2 years ago.

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!!!

Expert:  inciteadvisor replied 2 years ago.

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.

Customer: replied 2 years ago.

Thanks.

 

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. XXXXX@XXXXXX.XXX. I will accept your aswer in two minutes. Thanks for all your help.

Expert:  inciteadvisor replied 2 years ago.
In clarification of my answer above; SA accepted the articles of the 1982 Convention in the Labour Court and then in the Supreme Court of Appeal and further to that, the Legislator included the articles into the then new Labour Relations Act 1995. The relevant articles therefore do form part of the South African Legislation and Common Law.
inciteadvisor, Commercial Lawyer
Category: South Africa Law
Satisfied Customers: 1610
Experience: B.Com LLB Registered Corporate lawywer
inciteadvisor and other South Africa Law Specialists are ready to help you
Customer: replied 2 years ago.
You wouldnt happen to have refereals to the actual judgements of those matters that I can attach to my case when I proceed to my hearing at the CCMA. PLEASE
Expert:  inciteadvisor replied 2 years ago.
  • Metal & Allied Workers Union & Others v Stobar Reinforcing (Pty)Ltd & another (1983) 4 ILJ 84;
  • van Zyl v O'Okiep Copper Company Ltd (1983) 4 ILJ 125 (IC).
  • Basson, Christianson, Garbers, Le Roux, Mischke & Strydom; Essential Labour Law

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