Wrongfully Dismissed

Wrongfully Dismissed

Jan 25, 2011 Q&A by admin

Q

“If wrongfully dismissed can an employer reinstate and immediately suspend an employee pending a disciplinary hearing”

PA

There are two answers to your question:

  • From an employee’s perspective, no because the employee has the right to then choose whether he or she wishes to return to work or proceed with a claim against the employer for an unfair dismissal and claim compensation if the situation is already unbearable and the employee feels the relationship is tarnished. Then the employee may claim compensation instead of re-instatement, etc. However, from a financial point of view, it may be better for the employee who will be compensated during this period, and also if the dismissal is again unfair, he or she may have the right to re-approach the CCMA anyhow later, but may then not claim procedural unfairness only substantive unfairness.
  • From an employer perspective it may be better to reinstate the employee and redo the case, otherwise the employee will at least have a case against the company for procedural unfairness, even if substantive fairness was proved, in other words the employer had a rightful reason to terminate. The reason for the above is because of the fact that a company must dismiss a person substantively and procedurally correct and can be forced to reinstate someone if not or as an alternative where the employment relationship is tarnished, to pay compensation.

T A

Theoretically once an employee is dismissed, a hearing cannot take place anymore as the employer failed to follow the correct procedure and the dismissal cannot be corrected. The contractual relationship ended and the contract terminated.

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