Unfair Dismissal

In South Africa, an unfair dismissal is one that lacks a fair reason or a fair procedure under section 188 of the Labour Relations Act 66 of 1995, and an employee who believes they have been dismissed unfairly must refer the dispute to the CCMA or the relevant bargaining council within 30 days of dismissal. A successful claim can lead to reinstatement, re-employment, or compensation capped at 12 months’ remuneration for ordinary unfair dismissal and 24 months’ remuneration for automatically unfair dismissal.

What Counts as Unfair Dismissal Under the LRA

Section 188 of the Labour Relations Act 66 of 1995 protects employees from dismissal that is not for a fair reason and is not carried out through a fair procedure — both limbs must be satisfied for a dismissal to be substantively and procedurally fair. A “fair reason” is limited to three LRA categories — misconduct, incapacity, or operational requirements (retrenchment) — and the employer must prove the facts on which it relies. Unfair dismissal claims therefore fall into three overlapping categories: substantive unfairness (no fair reason), procedural unfairness (no fair process), and automatically unfair dismissal (dismissal for a prohibited reason listed in section 187).

The Three Categories in Practice

Category	Trigger	Example
Substantively unfair	No valid reason (misconduct, incapacity, retrenchment) under the LRA	Dismissal for alleged poor performance with no documented poor-performance process
Procedurally unfair	Fair reason on the facts but no fair hearing	Employee dismissed for misconduct without notice of charges, time to prepare, or a chance to respond
Automatically unfair	Dismissal for a prohibited reason under section 187	Dismissal for joining a union, taking pregnancy or maternity leave, blowing the whistle under the Protected Disclosures Act, or participating in a protected strike

Common Examples of Unfair Dismissal

Unfair dismissal rarely looks dramatic on paper; it usually shows up as a missing or botched procedure, a vague or shifting reason, or selective enforcement. Recurring patterns include dismissal without a disciplinary hearing, dismissal for vague or inconsistent reasons, dismissal that follows a complaint about discrimination or safety (retaliation), and selective enforcement — dismissing one employee for conduct the employer overlooks in others. Constructive dismissal arises where the employee is forced to resign because the employer has made the working environment intolerable through bullying, harassment, threats, or sudden unilateral changes to duties. Retrenchment carried out without proper consultation, without transparent selection criteria, or without the LRA’s minimum severance pay (one week’s remuneration for every completed year of service) is also unfair.

Automatic-Unfair Grounds Under Section 187

Section 187 lists the reasons for which a dismissal is automatically unfair, regardless of whether the employer followed a fair procedure: exercising any right given by the LRA, taking part in lawful union activities, participating in a protected strike or refusing to do the work of someone on strike, pregnancy or any reason related to pregnancy, refusing a unilaterally imposed change to working conditions, discrimination on an arbitrary ground listed in section 6 of the Employment Equity Act, transfer-related dismissal following a section 197 transfer, and a disclosure protected under the Protected Disclosures Act 26 of 2000. Automatically unfair dismissal unlocks the higher 24-month compensation cap and, in some cases, a direct route to the Labour Court.

What to Do If You Have Been Unfairly Dismissed

The 30-day referral deadline is the single most important deadline in any unfair dismissal matter — it does not pause while an employee thinks things over.

1. Note the date of dismissal. The 30-day CCMA clock starts from the date of dismissal (or, for constructive dismissal, the date of resignation).
2. Gather documents. Termination letter, payslips, employment contract, warning letters, disciplinary records, emails, and grievance correspondence.
3. Identify the correct forum — the CCMA for most dismissals, the relevant bargaining council if one has jurisdiction, or the Labour Court for automatically unfair dismissals.
4. Refer the dispute on LRA Form 7.11 within 30 days. Late referrals need a condonation application showing good cause and a reasonable explanation for the delay.
5. Attend conciliation. A commissioner attempts to settle the dispute; any settlement reached is binding and may be made an arbitration award.
6. If conciliation fails, the matter proceeds to arbitration (or, for automatically unfair dismissal, to the Labour Court).

The CCMA Process Step by Step

1. Referral — File LRA Form 7.11 with the CCMA or the relevant bargaining council within 30 days of dismissal.
2. Conciliation — A meeting chaired by a commissioner; the goal is settlement, and any settlement reached is binding.
3. Arbitration — If conciliation does not resolve the dispute, the commissioner hears evidence and argument and issues a binding arbitration award.
4. Review — Either party may apply to the Labour Court to review an award on narrow grounds: procedural unfairness, commissioner misconduct, or exceeding powers.

Remedies and Compensation

Where a dismissal is found unfair, the LRA gives the commissioner or court a defined set of remedies. Reinstatement returns the employee to the job as if the dismissal never happened; re-employment rehires the employee as a new engagement; compensation is capped at 12 months’ remuneration for ordinary unfair dismissal and 24 months’ remuneration for automatically unfair dismissal. Compensation is more likely than reinstatement where the trust relationship has broken down, where returning to the workplace is not practical, or where the dismissal is unfair only on procedural grounds. The remedy asked for is fact-specific — a labour lawyer will frame the demand at conciliation based on the strength of the substantive case.

Why Engage a Specialist Labour Lawyer

Unfair dismissal matters move on strict timelines. The 30-day referral deadline is rigid — late referrals need condonation applications, and a specialist either moves fast or builds a credible condonation case. A labour lawyer prepares the Form 7.11 referral, the statement of case, and the document bundle, negotiates at conciliation, and represents the employee at arbitration; unrepresented employees routinely leave remedies on the table. Specialist counsel can also identify automatically unfair grounds under section 187 that unlock the higher 24-month cap — many employees do not realise their dismissal falls into this category until too late. Burger Huyser Attorneys’ labour-law intake is run through its general-litigation capability with input from specialist labour-law consultant Marius Ferreira, so related claims (unfair labour practice, discrimination under the Employment Equity Act, severance under the BCEA) can be coordinated without re-briefing a new firm on the same facts.

What Burger Huyser’s Labour Law Service Covers

• Initial eligibility and merits assessment — confirming whether the dismissal is substantively, procedurally, or automatically unfair.
• Document review (contract, disciplinary records, warnings, termination letter) and evidence preservation.
• Filing the CCMA Form 7.11 within the 30-day window, or preparing a condonation application if the deadline has passed.
• Representation at conciliation and arbitration before the CCMA or the relevant bargaining council.
• Coordination with related practice areas where claims overlap — restraint-of-trade or shareholder disputes linked to the dismissal, or deceased-estate planning where the dismissal changes family-income assumptions.

Choosing an Unfair Dismissal Lawyer: What to Look For

The criteria that matter are practical: direct CCMA and Labour Court experience; familiarity with both substantive and procedural unfairness arguments under the LRA and with the section 187 automatic-unfair grounds; a realistic assessment of remedies at the first consultation; a transparent fee conversation (some firms offer no-win-no-fee capped at the LRA’s 25% of winnings, others quote a fixed fee or per-file retainer; Burger Huyser Attorneys quotes on a per-file basis after the merits assessment); and the capacity to handle automatically unfair dismissal claims where the 24-month cap applies. Burger Huyser Attorneys meets that profile through its Linden-head-office labour-law intake, supported by specialist consultant Marius Ferreira and a multi-branch Gauteng footprint that lets dismissed employees from Randburg, Sandton, Roodepoort, Bedfordview, Midrand, Alberton, Centurion, or Pretoria see a lawyer in their own suburb without the file losing continuity.

Practical Considerations: Cost, Timeline, What to Bring

Fees are quoted on a per-file basis after the merits assessment at the Linden HQ or any branch, and some matters are run on a contingency basis in line with the LRA’s 25% statutory cap — all options are discussed at the first consultation. Conciliation is typically scheduled within 30 to 60 days of referral; if the matter proceeds to arbitration, an award usually follows within 3 to 9 months, depending on the CCMA regional office’s caseload. For the first consultation, bring your ID, employment contract, termination letter, payslips, disciplinary records and warnings, performance reviews, the employer’s internal grievance or appeal correspondence, and any medical or psychological reports relevant to a constructive-dismissal claim.

Where Your File Gets Run — Gauteng Filing Layer

South Africa’s unfair-dismissal framework applies nationally, and unfairly dismissed employees in any province can refer a dispute to the CCMA or the relevant bargaining council. What changes is the practical layer — which CCMA regional office runs the file, which Labour Court division reviews any award, and which local attorneys handle the matter. Burger Huyser Attorneys fields unfair dismissal work from its Linden head office in Randburg, with specialist labour-law consultant Marius Ferreira coordinating the practice; intake is run through the firm’s Gauteng branches depending on file complexity. The firm holds practising rights across both the Johannesburg and Pretoria seats of the Gauteng Division of the High Court, and referrals go to the CCMA regional office that covers the employee’s workplace — the Johannesburg metro for Randburg, Sandton, Roodepoort, Bedfordview, Midrand, and Alberton clients, and Tshwane for Pretoria and Centurion clients. The Centurion branch (012 644 4990), Pretoria branch (012 471 5700), and Sandton branch (011 253 3080) are the practical first points of contact for clients in those corridors. The firm’s professional memberships include the Pretoria Attorneys Association, the Gauteng Family Law Forum, and the Johannesburg Attorneys Association.

Frequently Asked Questions

What counts as unfair dismissal in South Africa?

Under section 188 of the Labour Relations Act 66 of 1995, a dismissal is unfair if the employer does not have a fair reason for it (substantive unfairness), does not follow a fair procedure before dismissing (procedural unfairness), or dismisses for a prohibited reason listed in section 187 (automatically unfair dismissal — including dismissal for union activity, pregnancy, whistleblowing under the Protected Disclosures Act, or discrimination).

How long do I have to refer an unfair dismissal dispute to the CCMA?

An unfair dismissal dispute must generally be referred to the CCMA or the relevant bargaining council within 30 days of the date of dismissal. Late referrals require a formal condonation application supported by a full explanation for the delay and a prospects-of-success statement — early legal advice matters because the 30-day clock does not pause while an employee decides whether to act.

What compensation can I get for unfair dismissal?

Ordinary unfair dismissal compensation is capped at 12 months’ remuneration. Automatically unfair dismissal — dismissal for a prohibited reason such as union activity, pregnancy, whistleblowing under the Protected Disclosures Act, or discrimination — carries a higher cap of 24 months’ remuneration. Reinstatement or re-employment are also remedies where the employment relationship is still viable.

Do I need a lawyer for the CCMA, or can I go on my own?

An employee may represent themselves, but unfair dismissal matters involve strict procedural rules, evidence preparation, and cross-examination at arbitration. A specialist labour lawyer prepares the Form 7.11 referral, the statement of case, and the bundle of documents, and represents the employee at conciliation and arbitration; in practice, unrepresented employees frequently settle for less than the remedy a specialist would secure.

Is forced resignation the same as unfair dismissal?

It can be. Constructive dismissal arises where the employee is forced to resign because the employer has made the working environment intolerable — through bullying, harassment, threats, or sudden unilateral changes to duties or conditions. Constructive dismissal is treated as a dismissal under the LRA and the same 30-day CCMA referral period applies from the date of resignation.

Will I get my job back?

Reinstatement is a primary remedy under the LRA and is ordered where practicable, but compensation is more common in practice — particularly where the trust relationship between employer and employee has broken down or where returning to the workplace is not realistic. Burger Huyser Attorneys’ labour-law team gives an honest merits assessment at the first consultation rather than overstating the chance of reinstatement.

If you have been dismissed and believe the reason or the procedure was unfair, contact Burger Huyser Attorneys’ Labour Law team at the Linden head office on 011 888 0246 (after-hours 061 516 6878), or at the Sandton branch on 011 253 3080, the Centurion branch on 012 644 4990, or the Pretoria branch on 012 471 5700. The firm runs unfair dismissal matters through its general practice with input from specialist labour-law consultant Marius Ferreira, and accepts instructions from across Gauteng — Randburg, Sandton, Roodepoort, Bedfordview, Midrand, Alberton, Centurion, and Pretoria. Bring your ID, employment contract, termination letter, payslips, and any disciplinary records to the first consultation. Burger Huyser carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is a member of the Pretoria Attorneys Association, the Gauteng Family Law Forum, and the Johannesburg Attorneys Association.