How To Deal With Unfair Dismissal In South Africa

An unfair dismissal in South Africa is challenged by referring a dispute to the CCMA (or a relevant bargaining council) within 30 days of the date of dismissal under section 191 of the Labour Relations Act 66 of 1995. Failure to refer within that window typically results in the dispute being deemed late, and the employee bears the onus of showing reasonable grounds for the delay. The CCMA first attempts conciliation; if the dispute remains unresolved, the employee may refer it to the CCMA for arbitration or, in the case of automatically unfair dismissal or discrimination claims, to the Labour Court for adjudication. The substantive test is whether the employer had a fair reason related to the employee’s conduct, capacity, or operational requirements and followed a fair procedure, with the Schedule 8 Code of Good Practice on Dismissal providing the operational yardstick the commissioner applies.

What Counts as an Unfair Dismissal Under the LRA

Section 186 of the Labour Relations Act 66 of 1995 defines dismissal broadly. It captures the situations that look and feel like dismissal in everyday language, but also a few that don’t. A “dismissal” for the purposes of the LRA includes:

• Termination of the employment contract by the employer, with or without notice.
• Failure to renew a fixed-term contract where the employee reasonably expected renewal.
• Constructive dismissal, where the employee resigns because the employer made continued employment intolerable.
• Selective re-engagement after retrenchment, where one employee is dismissed and replaced with another doing the same work on less favourable terms.

A dismissal is unfair if the employer cannot show a fair reason (related to conduct, capacity, or operational requirements) and a fair procedure. These are the two pillars of what is called the substantive-and-procedural fairness test. Probationary employees are not excluded from the LRA’s protection, but a shorter procedural standard applies during probation: a reasonable evaluation of suitability, not the full evidentiary discipline required in a disciplinary hearing.

The Three Categories of Dismissal Reason

Category	What it covers	Procedural standard
Misconduct	Breaches of the rule or standard the employer is entitled to expect: dishonesty, insubordination, absenteeism, breach of company policy.	The Schedule 8 Code of Good Practice on Dismissal’s progressive-discipline proportionality test applies.
Incapacity	The employee cannot perform the work: poor performance, ill health, or injury.	Different procedural rules from misconduct: assessment, support, and accommodation rather than disciplinary steps.
Operational requirements (retrenchment)	Economic, technological, structural, or similar operational needs.	Section 189 consultation obligations on large-scale retrenchments, and the section 189A “large-scale” regime for bigger operations.

Automatically Unfair Dismissal (Section 187) — A Distinct Category

Section 187 of the LRA lists dismissals that are automatically unfair. The employer bears the burden of proving the dismissal was not for one of the prohibited reasons, and the compensation cap is higher — up to 24 months’ remuneration rather than the ordinary 12 months. Prohibited grounds include participation in a protected strike, exercising any LRA right, refusing to do work normally done by a striker, pregnancy, intended pregnancy, or any form of discrimination on a listed ground (race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, and HIV status).

An employee may refer an automatically unfair dismissal directly to the Labour Court. This is the one category where the Labour Court is the primary forum rather than the CCMA, and there is no conciliation prerequisite. Where the discriminatory conduct also implicates the Employment Equity Act 55 of 1998, the employee may lodge a simultaneous complaint with the CCMA.

Step 1: Confirm the Date of Dismissal and Start the 30-Day Clock

The 30-day referral window runs from the date of dismissal (the date the employee is informed, not the date of the last salary) under section 191(1)(b) of the LRA. Time may be extended if the employee was not aware of the dismissal, or if referral within 30 days was not reasonably practicable. The test is “good cause,” and the commissioner has a discretion. Late referrals are not automatically fatal but are presumptively refused; the employee must give a full explanation for the delay.

Step 2: Try the Internal Route (If Required)

The LRA requires the employee to first use any internal grievance or appeal procedure if it exists and the rules are reasonable. Failure to do so can be a ground for the CCMA to find the referral was premature. For retrenchment dismissals, the consultation process under section 189 is the relevant procedural layer. For a misconduct dismissal, the internal disciplinary appeal is the appropriate internal step — skipping it weakens the eventual case.

Step 3: Refer the Dispute to the CCMA (or Bargaining Council)

File a CCMA Form 7.11 (referral of dispute) at the regional office that has jurisdiction — usually the office in the province where the employee worked, or where the dismissal occurred. If the employee’s workplace falls under a registered bargaining council, the dispute must first go to the council, not the CCMA. The council will attempt conciliation and may issue a certificate of non-resolution that allows the employee to escalate to the CCMA arbitration. The CCMA will set a conciliation date, typically within 30 days of referral, although the statutory window is shorter and the practice is often compressed.

Step 4: Conciliation

The CCMA appoints a commissioner who mediates between the employer and the employee to try to resolve the dispute. Conciliation is confidential and “without prejudice” — what is said in conciliation cannot generally be used against either party later. The two possible outcomes are a settlement agreement (often recording a financial settlement, a reference letter, or both) or a certificate of non-resolution (the green light to proceed to arbitration or the Labour Court).

Step 5: Choose Between Arbitration and the Labour Court

Route	When it is used	Key features
Arbitration	The default route for ordinary unfair dismissal.	Heard by a CCMA commissioner; more informal than court; less expensive; the commissioner has limited discovery and limited power to make costs orders.
Labour Court	Required for automatically unfair dismissal, discrimination claims, and review applications.	More formal; has subpoena power; can make costs orders; can review arbitration awards on grounds of misconduct by the commissioner or gross irregularity.

The choice can be made after seeing how conciliation went and on legal advice — most ordinary unfair-dismissal matters proceed to arbitration.

Step 6: Arbitration or Adjudication Hearing

The employee bears the onus of proving the dismissal took place; once that is established, the employer bears the onus of proving the dismissal was fair on substantive and procedural grounds. The commissioner or court applies the Schedule 8 Code of Good Practice on Dismissal as a guide to procedural fairness. The award is issued in writing; for CCMA arbitration, the statutory deadline is within 14 days of the conclusion of the arbitration.

Step 7: Remedies Available

Remedy	What it means	Limit
Reinstatement	The employee is restored to the same or similar position with no loss of service.	The employer must show just cause why it is not practicable in order to avoid reinstating.
Re-employment	The employee is re-employed on similar terms but not in the same position.	Used where reinstatement is not appropriate but continuity of employment is warranted.
Compensation (ordinary unfair dismissal)	Back pay from the date of dismissal to the date of the award.	Up to 12 months’ remuneration.
Compensation (automatically unfair dismissal)	Back pay from the date of dismissal to the date of the award.	Up to 24 months’ remuneration.

The award is read against the employee’s actual loss and the principle of “the duty to mitigate.” The employee must show they took reasonable steps to find alternative work.

Step 8: Review or Further Action

A CCMA arbitration award can be reviewed by the Labour Court. The test is whether the commissioner committed misconduct, exceeded their powers, or arrived at a decision a reasonable commissioner could not reach. A Labour Court judgment can be appealed to the Labour Appeal Court and then to the Constitutional Court on constitutional matters. Appeals on compensation quantum are limited and the standard is generally “without just cause.”

Where to Get Help in Gauteng

Frequently Asked Questions

How long do I have to challenge an unfair dismissal in South Africa?

30 days from the date of dismissal under section 191 of the Labour Relations Act, although late referrals can be condoned on good cause shown.

What is the difference between unfair dismissal and automatically unfair dismissal?

Ordinary unfair dismissal arises when the employer cannot prove a fair reason and a fair procedure; automatically unfair dismissal is a specific subcategory under section 187 of the LRA where the dismissal was for a prohibited reason (such as striking, pregnancy, or discrimination) and the employer carries the burden of proof. The compensation cap is also higher (24 months’ remuneration vs 12 months).

Where do I file my unfair-dismissal dispute?

At the CCMA regional office that has jurisdiction over where the employee worked, or at the relevant bargaining council if the workplace falls under a registered council. The council’s attempt at conciliation is usually a prerequisite before CCMA arbitration.

Can I claim both reinstatement and compensation?

The primary remedy is reinstatement or re-employment; compensation is awarded in lieu only if reinstatement is not practicable for the employer or the employee does not want it. The award is calibrated to actual loss, less any amount earned in mitigation.

Does it matter if I was on a probation period?

No. Probationary employees are still protected by the LRA, but the procedural standard is shorter (the employer must conduct a reasonable assessment and afford the employee an opportunity to respond) and the substantive fairness test is whether the employer acted reasonably in evaluating suitability.

How do I find a labour-law attorney to assist with an unfair dismissal dispute?

Labour attorneys typically take instructions on a consultation plus hearing-fee basis, and many offer an initial free or low-cost assessment before the CCMA referral. Look for an attorney registered with the Legal Practice Council with experience in CCMA matters and Labour Court litigation.

If you’d like a specific assessment of your unfair-dismissal matter — the CCMA referral, the choice between arbitration and the Labour Court, or the timing of your next step — Burger Huyser Attorneys’ Labour Law practice can assist. The practice is led by specialist consultant Marius Ferreira and fielded across the firm’s Gauteng branches, including the head office in Linden, Randburg (49 First Avenue, 011 888 0246) and the Centurion branch (Block 12, Unit 34, Central Office Park, 257 Jean Avenue, 012 644 4990). Book an initial consultation to confirm the route and a fee estimate before the 30-day referral window closes.