What counts as unfair dismissal
Unfair dismissal South Africa cases are decided using the Labour Relations Act (LRA), which gives every employee the right not to be dismissed without a fair reason and a fair process. This applies whether you are permanent, fixed-term or part-time, once you have started working.
A dismissal is unfair if the employer had no valid reason to fire you, or had a valid reason but followed an unfair process, or if the reason itself is one the law singles out as automatically unfair. It also covers situations where you resigned because your employer made your job intolerable. This is called constructive dismissal, and the LRA treats it the same as a direct firing.
The grounds: three types of dismissal dispute
The LRA splits dismissals into two broad categories, and the category matters because it changes where your case ends up.
Ordinary unfair dismissal. This covers the three fair reasons an employer can normally rely on: misconduct, incapacity (poor performance or ill health), and operational requirements (retrenchment). A dismissal for one of these reasons can still be unfair if the employer didn’t follow a fair procedure, for example by not holding a disciplinary hearing or not consulting properly before a retrenchment.
Automatically unfair dismissal. This is a shorter, specific list of reasons the law says can never justify a dismissal, no matter what process was followed. It includes dismissal for joining a union or taking part in protected strike action, for pregnancy or a reason related to pregnancy, for discrimination based on race, gender, disability, religion or similar grounds, and for whistleblowing under the Protected Disclosures Act.
Unfair labour practice. This is a separate dispute type, not a dismissal, covering things like unfair suspension, unfair disciplinary action short of dismissal, or an employer refusing to reinstate you after maternity leave. It follows a different time limit, shown below.
The distinction between ordinary and automatically unfair matters because a dispute concerning unfair dismissals must be referred within 30 days of the date of dismissal, while an unfair labour practice dispute must be referred within 90 days of the date of the alleged unfair labour practice. Even where the dismissal involves alleged discrimination, unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the Labour Relations Act, and the dismissal must be referred to the CCMA within 30 days.
Time limits at a glance
| Dispute type | Time limit to refer | Where it starts |
|---|---|---|
| Ordinary unfair dismissal (misconduct, incapacity, retrenchment) | 30 days from the date of dismissal | CCMA conciliation |
| Automatically unfair dismissal (including discrimination) | 30 days from the date of dismissal | CCMA conciliation, then Labour Court if unresolved |
| Unfair labour practice (not a dismissal) | 90 days from the incident | CCMA conciliation |
If the employer had an internal appeal and you waited for its outcome, the clock can run from that later decision rather than the original dismissal date. Where disputes relate to unfair dismissals, these must be referred for conciliation within 30 days of the dismissal or, if it is a later date, the employer’s final decision to dismiss. Miss the deadline and you must apply for condonation, which is not guaranteed.
The process: conciliation, then arbitration or court
The first step in all disputes is referral to conciliation. You complete an LRA referral form and lodge it with the CCMA, or with the relevant bargaining council if your sector has one. If a dispute has been properly referred, the CCMA will appoint a commissioner to attempt to resolve it, and the commissioner is required to resolve the dispute within 30 days of its referral date.
No legal representation is allowed in conciliation proceedings. At the end of the conciliation proceedings, the commissioner issues a certificate stating whether or not the dispute has been resolved. If conciliation fails, most misconduct, incapacity and constructive dismissal disputes move to CCMA arbitration, often on the same day through a process called con-arb. Arbitration proceedings are more formal than conciliation, and the commissioner hearing the dispute makes a decision which in most cases is final and binding, and may be made an order of the Labour Court.
Automatically unfair dismissals, discrimination disputes and most retrenchment disputes don’t go to CCMA arbitration. If conciliation fails, they go to the Labour Court instead, which can take considerably longer than an arbitration.
Remedies: what you can actually win
Reinstatement, re-employment, or compensation are the three remedies available, and a commissioner or judge chooses between them.
Reinstatement is not automatic just because you win. In one case that reached the Constitutional Court, the court confirmed that under section 193(2) of the LRA, reinstatement would not follow as a matter of course, and would not be an option if circumstances surrounding the dismissal were such that a continued employment relationship would be intolerable.
Compensation is the more common outcome, and it is not handed out automatically either. Compensation is not automatic. It is a discretionary matter, and a whole range of factors must be taken into account to determine whether it should be awarded. The LRA caps how much can be awarded: for an ordinary unfair dismissal the limit is 12 months’ remuneration, and for an automatically unfair dismissal it rises to 24 months. These caps have stayed the same for years and are not linked to the annual Budget, but confirm the exact wording with the Department of Employment and Labour before relying on them in a specific case.
Where to lodge a case
Take your dispute to the CCMA nearest to your workplace, not your home address, unless your sector has its own bargaining council (education and the public service, for example, have their own councils). CCMA referral forms and offices are listed on the CCMA’s own site. You do not need a lawyer to refer a dispute or to attend conciliation, and legal representation at arbitration is restricted in many cases, so most employees represent themselves or use a union official.
Bring your ID, your contract, any dismissal letter, and notes on what happened and when. The 30-day clock is the single most important number in this process. If you are close to it, refer the dispute first and gather documents afterwards.
Where to check officially
For the current CCMA referral forms, office addresses and case rules, use the CCMA’s own website. For the underlying law, including the Labour Relations Act and the Code of Good Practice: Dismissal, check the Department of Employment and Labour’s site. Rules on notice periods and severance pay for retrenchments sit under the Basic Conditions of Employment Act, administered by the same department.
