This week’s reader could not attend work for four consecutive days, due to her child being in hospital.

For various reasons, she did not contact her employer to let him know that she would be unable to come to work until her child was discharged from hospital.

On her return, she found a notice of disciplinary inquiry on her desk. The hearing was held and she was dismissed on the grounds that she deserted her post.

She appealed the outcome and sanction of the hearing with her employer, but the sanction was upheld at the appeal.

She would like to know what her next step would be to possibly be reinstated in her previous position.

After a disciplinary hearing – if the outcome was not in favour of the employee as in the reader’s case – the employee must appeal the decision before the matter can be referred to the CCMA (Commission for Conciliation, Mediation and Arbitration).

An employee only has to follow the appeal route if the employer’s disciplinary codes and procedures allow for an appeal process. If it does not allow for an appeal process, then the employee may approach the CCMA directly after the disciplinary hearing.

Having already appealed through the company’s internal appeal process, our reader now needs to refer her dispute to the CCMA. At this point in the process she should decide whether she will make use of the services of an attorney or handle the case herself.

There is no reason why she could not proceed on her own to bring a dispute to the CCMA (the process is cost-free), but she may feel more comfortable in appointing an attorney to guide her through the process.

In order to bring a dispute to the CCMA, the employee needs to fill out the LRA 7.11 form. In Port Elizabeth, this form can be obtained from the CCMA’s office in Govan Mbeki Avenue (disputes should be referred to your regional office).

It is of the utmost importance to correctly state the registered, official name of the company against which the dispute is referred.

In our reader’s case, she will have to tick the box Unfair Dismissal. Where asked to summarise the facts, she can state that she was dismissed due to alleged misconduct, that the sanction was upheld at an appeal and that she remains dismissed.

The date on which the dispute arose is extremely important, as a dispute has to be referred to the CCMA within 30 days of an employee being dismissed, or within 30 days of the employee becoming aware of the fact that he or she has been dismissed.

It is important to note that where a person has referred an unfair dismissal dispute outside of the 30-day statutory period, that that person should file a condonation application to disregard the late referral to the CCMA.

The outcome sought by the reader could be one or more of the following:

The reader may want to be placed back in her position and be compensated for the time that she was not working for the company, which is known as retrospective reinstatement. Another outcome could be a straight reinstatement, where no back pay is asked.

Alternatively, the employee may wish not to work for the company any longer, but would like to claim compensation. The maximum compensation that an employee will be entitled to is 12 months’ salary, but this is determined by taking various factors into consideration.

There may also be other outstanding monies due to the employee, which he or she might want to claim.

Once the LRA 7.11 form has been completed, the employee has to serve a copy of the form on the employer. This may be done by fax, registered post or by hand.

Irrespective of which option the employee wishes to exercise, proof of service – a fax transmission slip, registration slip or the employer’s signature – needs to be obtained.

Having done this, any of the same methods can be followed by the employer to get the form to the CCMA, but it must be accompanied by proof that the employee has received the form.

Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.

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