What Can I Do If I Have Been Unfairly Dismissed?

If you have been unfairly dismissed in South Africa, the primary route is to refer an unfair-dismissal dispute to the CCMA (or to a bargaining council with jurisdiction) within 30 days of the date of dismissal under section 191 of the Labour Relations Act 66 of 1995 — late referrals may be condoned only on good cause shown. If conciliation fails, the dispute is arbitrated and the commissioner may grant one of three statutory remedies under section 193: reinstatement to the previous job, re-employment on comparable terms, or compensation. Compensation is capped under section 194 at the equivalent of 12 months’ remuneration for an ordinary unfair dismissal and 24 months for an automatically unfair dismissal or one linked to a protected strike or protected disclosure. Dismissed employees who allege unfair discrimination at the root of the dismissal may instead pursue that part of the dispute in the Labour Court under the Employment Equity Act 55 of 1998.

What Counts as an Unfair Dismissal Under the LRA

Section 186 of the LRA defines “dismissal” broadly. It covers the ordinary case where an employer terminates the contract of employment, the constructive-dismissal scenario where the employee resigns because the employer made continued employment intolerable, and the non-renewal of a fixed-term contract in circumstances where the employee had a reasonable expectation of renewal on the same terms. Refusal to allow an employee to return to work after maternity leave or another absence protected by the Basic Conditions of Employment Act is also treated as a dismissal.

Once a dismissal is established, the substantive grounds that may justify it are set out in section 188. The employer must show that the reason for dismissal was one of three: misconduct, incapacity (whether poor work performance or ill health), or operational requirements (commonly called retrenchment or redundancy). That covers the substantive leg of the fairness test. The procedural leg is a separate requirement: the employer must also show that a fair procedure was followed — proper investigation, notice of the allegation, a chance to respond, representation, and a fair outcome.

The employer carries the burden on both legs. If the substantive reason is absent, the dismissal is substantively unfair. If the procedure is absent, it is procedurally unfair. Either failure alone is enough to render the dismissal unfair under the LRA and to unlock the section 193 remedies.

The Time Bar — Why 30 Days Matters

An unfair-dismissal dispute must be referred to the CCMA or the relevant bargaining council within 30 days of the date of dismissal under section 191(1) of the LRA. A referral made after that deadline can be condoned, but only if the dismissed employee shows good cause for the delay. Late referrals without a credible explanation are refused on the doorstep, and the dispute is then closed without the substantive merits ever being heard.

The 30-day clock starts at the date of dismissal, not at the date of the final salary payment or at any later disciplinary step. Confirm the exact date of dismissal from the letter of dismissal or termination notice before counting the days — getting the start date wrong can forfeit the right to refer.

Where to Refer the Dispute

The correct forum depends on the parties’ coverage and the nature of the dispute.

• CCMA — the default forum for unfair-dismissal disputes where no bargaining council has jurisdiction. The CCMA’s Johannesburg, Pretoria, and other Gauteng offices serve the region where most Burger Huyser clients are based.
• Bargaining council — where the employer and employee fall within a registered bargaining council’s coverage and the council has jurisdiction over dismissals, that council is the first forum.
• Labour Court — handles disputes about automatically unfair dismissals (for example, dismissal linked to a protected disclosure under the Protected Disclosures Act, or unfair discrimination under the Employment Equity Act) and reviews or enforces CCMA arbitration awards.
• Civil courts — for claims framed as breach of contract or unlawful termination outside the LRA framework, ordinary civil jurisdiction remains available. The unfair/unlawful distinction is important: an unlawful termination is a contractual claim attracting civil damages, whereas an unfair dismissal attracts the statutory remedies under section 193.

The CCMA Process, Step by Step

1. Lodge the referral. The unfair-dismissal referral is lodged with the CCMA (or bargaining council) on the prescribed form, within 30 days of dismissal. Supporting documents usually include the letter of dismissal, the contract of employment, and any disciplinary record.
2. Conciliation. The CCMA schedules conciliation, typically within 30 days of referral, and attempts to resolve the dispute through facilitated negotiation. If a settlement is reached, it is made an arbitration award and is legally binding.
3. Arbitration or Labour Court election. If conciliation fails, the dispute proceeds to arbitration — or to the Labour Court if either party makes that election after conciliation has failed.
4. Arbitration award. The arbitrator issues a written, reasoned decision on whether the dismissal was substantively and procedurally unfair and, if so, what remedy is granted under section 193.
5. Review or enforcement in the Labour Court. Either party may apply to the Labour Court to review the arbitration award on narrow grounds (for example, misconduct by the commissioner or exceeding powers). A review is not an appeal on the merits.

The Three Statutory Remedies Under Section 193

Section 193 of the LRA sets out three remedies, in this order of preference:

• Reinstatement — the employee returns to the same job on the same terms and conditions of employment, with back pay from the date of dismissal less any earnings earned elsewhere in the meantime.
• Re-employment — the employee is taken back into employment, but in a different job or on different terms where the previous post is no longer available.
• Compensation — a monetary award in lieu of reinstatement where reinstatement or re-employment is inappropriate or where the parties agree to compensation.

Compensation Limits Under Section 194

The cap on compensation depends on the type of unfair dismissal. The figures below are statutory maximums, not defaults — the commissioner or court decides the appropriate figure based on the facts, the seriousness of the procedural flaw, and the employee’s attempts to mitigate their loss.

Type of unfair dismissal	Maximum compensation under section 194
Ordinary unfair dismissal (substantively and/or procedurally unfair misconduct, incapacity, or retrenchment dismissal)	Up to 12 months’ remuneration
Automatically unfair dismissal (e.g. for exercising a right, or where the dismissal contravenes the Employment Equity Act)	Up to 24 months’ remuneration
Dismissal related to participation in a protected strike or protest action	Up to 24 months’ remuneration
Dismissal related to a protected disclosure (whistleblowing)	Up to 24 months’ remuneration

Compensation is calculated against the employee’s actual remuneration at the date of dismissal — not a notional figure. Keep payslips and the contract of employment handy so the figure can be established precisely.

Reinstatement vs Compensation — When Each Is the Right Remedy

Reinstatement is the primary remedy in principle under the LRA; compensation is the alternative where reinstatement is inappropriate. Reinstatement will normally be ordered where the dismissal was procedurally unfair but the underlying reason was sound, and where the working relationship can be restored. Compensation will be ordered where the relationship has broken down irretrievably, where the employee’s own conduct makes continued employment inappropriate, or where the employer can show that reinstatement is impractical on the facts.

Discrimination-Based Dismissals — The Parallel Route

A dismissal that is unfair because it involves unfair discrimination on a listed ground (race, gender, disability, age, religion, and others) is an automatically unfair dismissal under the Employment Equity Act. The dismissed employee may, in addition to the CCMA route, refer a discrimination dispute to the Labour Court or to the CCMA for arbitration under the EEA. The route determines whether the remedy is limited by section 194’s cap (CCMA arbitration) or whether damages under the EEA apply (Labour Court).

What the Firm Actually Helps With (Scope of Engagement)

The firm’s labour-law consultancy and its admitted attorneys across the Gauteng branches handle unfair-dismissal matters from first consultation through to Labour Court review. Practical scope of engagement:

• Pre-referral assessment — confirming whether the dismissal qualifies as unfair under section 186, whether the 30-day window has been met, and whether the correct forum is the CCMA, a bargaining council, or the Labour Court.
• Referral drafting and lodgement — preparing the CCMA referral and the supporting document bundle.
• Representation at conciliation — attending the facilitated negotiation and advising on settlement language and the enforceability of any settlement agreement.
• Representation at arbitration — preparing the bundle, leading evidence, cross-examining the employer’s witnesses, and arguing remedy.
• Labour Court review or enforcement — bringing or opposing review applications under section 145 of the LRA, and enforcing arbitration awards where an employer fails to comply.
• Settlement drafting — preparing settlement agreements that record the agreed remedy and the withdrawal of the referral.

Unfair Dismissal in Gauteng: Filing at the CCMA and Review in the Labour Court

Frequently Asked Questions

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

You must refer the unfair-dismissal dispute to the CCMA or relevant bargaining council within 30 days of the date of dismissal under section 191(1) of the Labour Relations Act. A late referral can be condoned only on good cause shown — missing the deadline without a credible reason means the dispute is refused at the door.

What remedies can I get if my dismissal is found to be unfair?

Section 193 of the LRA gives three remedies — reinstatement to the same job, re-employment on comparable terms, or compensation. Reinstatement is the primary remedy in principle; compensation is granted where reinstatement is inappropriate. Compensation is capped under section 194 at the equivalent of 12 months’ remuneration for ordinary unfair dismissal and 24 months for automatically unfair dismissal or dismissals linked to protected strikes or protected disclosures.

What if my employer won’t take me back after an arbitration award?

An arbitration award is legally binding and may be enforced through the Labour Court. If the employer fails to reinstate as ordered, the dismissed employee can approach the Labour Court to compel compliance, and compensation is usually substituted for the unperformed reinstatement.

Do I need a lawyer to take an unfair-dismissal case to the CCMA?

Representation at the CCMA is not strictly required — employees may self-represent. However, unfair-dismissal arbitration involves evidence leading, cross-examination, and remedy arguments; an attorney familiar with the LRA frame (substantive fairness, procedural fairness, section 193 remedies) materially improves the prospects of a clean award rather than an unreviewable one.

How long does an unfair-dismissal case take from referral to award?

From the date of referral, the CCMA typically schedules conciliation within roughly 30 days, and arbitration (if conciliation fails) is usually set down within a further two to six months depending on the roll. Complex matters — or those with interim disputes — take longer.

What should I bring to my first consultation with a labour-law attorney?

Bring the letter of dismissal, your contract of employment, payslips for the 12 months before dismissal, any disciplinary record or warnings, and any written correspondence from the employer about the dismissal. The attorney will also want a clear account of the events leading to the dismissal in date order.

If you have been unfairly dismissed and need help with a CCMA referral, representation at conciliation and arbitration, or a Labour Court review, contact Burger Huyser Attorneys’ labour-law team on 011 888 0246 or visit the head office at 49 First Avenue, Linden, Randburg. The firm fields unfair-dismissal matters across its Gauteng branches — Pretoria/Menlyn (012 471 5700), Sandton (011 253 3080), Centurion (012 644 4990), Roodepoort (011 668 0030), Bedfordview (011 201 7190), and Alberton (011 439 3990) — so you can start the conversation at whichever branch is closest to you. The 30-day referral window under section 191 of the LRA is short; book a consultation promptly, bring your dismissal letter and contract, and the firm will give you an honest read on prospects and a transparent cost conversation before any referral is lodged.