good daymy fiance has just been layed of...

Asked by Bradley on 25-03-2020 12:37:50
Question posted in the Consumer Protection Law category relating to Gauteng
Question value: R 250.00

good day

my fiance has just been layed off,

she has been employed there for 6 months,

the company put her on a review in January for 3 months,

as the country is now going on lock down she cannot complete the month as well as the company has not tried assisting her in getting more sales, plus she was promised fuel on her contract which she wasnt given for 6 months, 

they have told her to leave immediately, \

please advise

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Information Requested by Lawyer

Posted by Att. Patrick on 25-03-2020 13:12:33

Hi there,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

This is a request for information so that I can understand your question and give you a proper answer.

When you say that she was put on review in January for 3 months, what exactly do you mean by that? Was it agreed that her contract would be extended for a further 3 months (i.e. until the end of March) and then the company would look at the situation and either extend the contract or not extend it?

What outcome would your girlfriend like?

Awaiting your further information.

Att. Patrick

Information provided by client

hi Patrick,

thank you for the response,
no there wasn't anything in the contract about the probation,
it was a performance review,my apologies

as far as i know they company needs to assist in the period as well as give her all the resources possible,which they haven't training etc
the fact that they did not even pay her the fuel for 6 months hindered her from doing her job as agreed in the contract seems a bit unfair, as well as now the country is in lock down her 3 months is not even up yet,

i need to discuss with her what she wants of the outcome,

advise is needed as i think this company is using the corona virus as a way out,

Answer to the Question

Posted by Att. Patrick on 26-03-2020 12:02:23

Getting put on performance review means that the company has identified that the employee is not functioning properly in his/her job, and that the employee is not meeting the job requirements, and that the performance is being monitored, and the employer has counseled the employee and has put measures into place to assist the employee in performing his/her job. This happens in a first meeting. 

Then, a second meeting is called to re-assess the performance review, normally 3 months later.

At this second meeting, the company goes through everything discussed at the first meeting. If the employee is now performing correctly, then the interventions worked, and the employee comes off performance review. If the employee is still not performing correctly, and there is still poor performance notwithstanding the interventions which were put into place, then the company is entitled to hold an enquiry into the employee's dismissal.

In all cases, dismissal must be preceded by a fair procedure (procedural fairness) and the dismissal must be effected for a fair reason (substantive fairness).

Procedural fairness will be achieved by the employer following the procedures in this course. As with most important things in life, nothing is guaranteed – but in our view, these procedures come as near to achieving procedural fairness as can possibly be done.

Substantive fairness is achieved by the employer proving that the employee actually failed to meet the work performance standard, despite having been given the necessary evaluation, counselling, training and guidance and despite having been afforded a reasonable time period in which to attain and maintain the required standard. Thus the only remaining option was dismissal.

If the dismissal was not procedurally or substantively fair, then the employee can challenge the dismissal and possibly get his/her job back.

It sounds as if she could have been dismissed without the company following all of the correct measures. She could therefore appeal against the dismissal with the company. 

If the company refuses to reverse the dismissal on appeal, she would need to file a dispute with the CCMA to say that her dismissal was neither procedurally or substantively fair, and she should get her job back, or compensation. 

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