Unfair Dismissal in Temporary Work | What Employees Need to Know

Temporary workers in South Africa — those placed by a Temporary Employment Service (TES / labour broker), employed on a fixed-term contract, or assigned to a client on a non-permanent basis — are protected against unfair dismissal under the Labour Relations Act 66 of 1995 (LRA) on the same basis as permanent employees. Sections 198, 198A and 198B of the Act add a layer of rules on top of the general protection: they govern who counts as the employer, when a temporary worker is deemed to be employed by the client, and when non-renewal of a fixed-term contract is itself an unfair dismissal. A temporary worker who is dismissed and believes the dismissal was unfair (or automatically unfair) may refer the dispute to the CCMA or the relevant Bargaining Council within 30 days of the dismissal, with compensation capped at 12 months’ remuneration for ordinary unfair dismissal and 24 months’ remuneration for automatically unfair dismissal.

What “Temporary Work” Means Under the LRA

Temporary work in South Africa falls into three overlapping legal categories, all governed by sections 198, 198A and 198B of the LRA. The categories overlap because a single placement can involve more than one of them at the same time (a TES-placed worker, for example, is often also on a fixed-term contract), and the answer to “who is my employer” depends on which category applies.

• Temporary Employment Services (TES) — sometimes still called a “labour broker” — is the entity that employs the worker and then assigns them to a client. The TES is the worker’s employer, but section 198 creates joint and several liability between the TES and the client for certain breaches.
• Fixed-term contracts — employment for a defined period or defined project. Expiry of the contract is generally not a dismissal, but it becomes one where the employee reasonably expected renewal on the same or similar terms.
• Non-permanent placement under section 198B(4) — arrangements where a client temporarily “seconds” or borrows workers from another employer. Protections here overlap with TES assignments.

Who Counts as the Employer in a Temporary Placement

The TES is the employer of the worker it places — it pays salary, deducts UIF, issues an IRP5-equivalent tax certificate, and bears the primary duties under the LRA and the Basic Conditions of Employment Act 75 of 1997 (BCEA). Two statutory rules change that picture in particular cases:

1. Joint and several liability under section 198(4). If the TES fails to pay the worker, the worker may treat the contract as one with the client for the purpose of recovery, and the TES and the client are jointly and severally liable. This is the most common route used to recover unpaid wages when a TES collapses or disappears.
2. Deemed employment under section 198A(3)(b). If a worker is assigned to a client for more than three months, the worker is deemed (with limited exceptions) to be the employee of the client. This is the rule that changes who gets cited at the CCMA, and it is the rule most often missed by workers who believe they are “still” TES employees after a long assignment.

For a temporary worker trying to work out where to file, the practical test is: who pays you, who issued the contract, and how long have you actually been on the assignment? The answers determine which entity the CCMA will treat as the employer.

When a Temporary Worker’s Dismissal Is “Unfair”

The same substantive and procedural fairness test under the LRA applies to temporary workers as to permanent employees. A fair dismissal needs both:

Test	What it requires
Substantive fairness	A fair reason — misconduct, incapacity (ill health or poor performance), or operational requirements (retrenchment). The Code of Good Practice: Dismissal applies regardless of contract type.
Procedural fairness	A fair hearing — notice of the allegations, time to prepare, the right to be represented (by a trade union representative or a colleague), the opportunity to lead evidence and call witnesses, and a written decision.

Two temporary-work situations often catch employees out. First, a fixed-term contract ending at its expiry is not automatically a dismissal — but it becomes one where the worker reasonably expected renewal on the same or similar terms, especially if the contract has been renewed before or if there was an oral or implied expectation of renewal. Second, constructive dismissal applies equally: a temporary worker forced to resign because of intolerable conditions has the same claim as a permanent employee, provided the test for constructive dismissal under LRA jurisprudence is met.

Automatically Unfair Grounds That Apply Equally to Temporary Workers

Some dismissals are automatically unfair regardless of substantive or procedural fairness. The grounds that most often apply to temporary workers include:

• Pregnancy, maternity leave, or any reason related to pregnancy
• Exercising any right conferred by the LRA, or participating in LRA proceedings
• Taking part in lawful union activities or a protected strike
• Refusing to do the work of a person on strike
• Refusing to accept a change in working conditions
• Arbitrary discrimination on a listed ground, or dismissal following a section 197 transfer of a business
• Whistle-blowing under the Protected Disclosures Act 26 of 2000

The CCMA Process for a Temporary Worker

1. The dismissal occurs — or the fixed-term contract ends without renewal in qualifying circumstances.
2. Within 30 days, refer the dispute to the CCMA on the prescribed form (LRA Form 7.11), or to the relevant Bargaining Council if one covers the employer and the employee falls within its registered scope.
3. If the 30-day deadline is missed, an application for condonation must be made, setting out the reasons for the delay and the prospects of success. Late referrals without condonation are typically dismissed on the basis of being out of time.
4. Conciliation first — a CCMA commissioner tries to broker a settlement between the parties.
5. If conciliation fails, the matter proceeds to arbitration. Automatically unfair dismissals may instead be referred directly to the Labour Court under section 191(5)(b) of the LRA.
6. The employer bears the burden of proof on both substantive and procedural fairness.

Burger Huyser Attorneys’ Labour Law practice takes temporary-worker referrals through this process at the CCMA and at the relevant Bargaining Council, and runs automatically unfair matters direct to the Labour Court where that route is the better fit.

Remedies and Compensation

Remedy	When it applies
Reinstatement	The worker’s preferred remedy where the relationship can sensibly continue; the worker is re-engaged on the same terms and conditions as before dismissal, with back pay.
Re-employment	The worker is re-engaged, possibly on different terms, where reinstatement is not practical but the employer still has suitable work available.
Compensation	Up to 12 months’ remuneration for ordinary unfair dismissal; up to 24 months’ remuneration for automatically unfair dismissal. Calculated on the monthly remuneration at the date of dismissal.

The CCMA does not award damages for reputational harm or unfair discrimination beyond the statutory cap. Such claims are typically routed to the Labour Court or the Equality Court under separate legislation (the Employment Equity Act 55 of 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000).

Practical Considerations for Temporary Workers

• Keep written records of the contract, every renewal, payslips, performance discussions, warnings and any written communication. TES and fixed-term arrangements are often poorly documented, and the paper trail decides the CCMA outcome.
• Check the contract structure — is the worker employed by the TES, by the client, or on a fixed-term contract with one of them? This determines who is cited at the CCMA and whether the deemed-employment rule applies.
• Watch the 30-day clock — the deadline runs from the date of dismissal, or from the date the fixed-term contract ends without renewal in qualifying circumstances. An out-of-time referral without condonation is fatal to the claim.
• Get advice early — TES contracts often include arbitration clauses or choice-of-venue clauses. An attorney familiar with both the LRA and the BCEA can identify whether the clause is enforceable before time is lost.

For a temporary worker in Gauteng, the relevant CCMA offices sit in Johannesburg, Pretoria, Randburg and elsewhere across the province, and the Labour Court sits at the Gauteng Division of the High Court, Johannesburg, with the Pretoria seat serving Pretoria- and Centurion-area matters. The Department of Employment and Labour’s public-facing guidance on Temporary Employment Services registration is the authoritative day-to-day reference for the regulatory side of TES placements.

Frequently Asked Questions

Can I be unfairly dismissed if my fixed-term contract simply runs out and is not renewed?

Not usually — the expiry of a fixed-term contract is not automatically a dismissal. It becomes an unfair dismissal, however, if the worker reasonably expected the contract to be renewed on the same or similar terms and the employer did not renew it (or renewed it on less favourable terms). The more often a contract has been renewed, and the more the employer’s conduct has signalled an expectation of renewal, the stronger this claim becomes.

Who do I cite at the CCMA — the labour broker or the client?

Cite the employer named in your contract. If you were placed by a Temporary Employment Service (TES / labour broker), that entity is your employer and is the primary respondent. Section 198(4) of the LRA creates joint and several liability with the client in certain circumstances (notably unpaid wages), and section 198A(3)(b) deems you to be the client’s employee if you have been on the assignment for more than three months — that deemed-employment rule changes who the CCMA treats as the employer.

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

30 days from the date of dismissal. The deadline can be extended only by an application for condonation, which must explain the reasons for the delay and show reasonable prospects of success. Late referrals without condonation are typically dismissed on the basis of being out of time.

Do temporary workers get the same protections as permanent employees?

Yes — the LRA applies to all employees regardless of contract type. A TES worker, fixed-term contractor, or non-permanent placement has the same right not to be unfairly dismissed as a permanent employee, including the same Code of Good Practice standards on substantive and procedural fairness, the same automatically unfair grounds, and the same access to the CCMA.

What compensation can I get for unfair dismissal as a temporary worker?

Up to 12 months’ remuneration for ordinary unfair dismissal, and up to 24 months’ remuneration for automatically unfair dismissal (such as dismissal for pregnancy, union activity, or whistle-blowing). The figure is calculated on the worker’s monthly remuneration at the time of dismissal. Reinstatement or re-employment can also be ordered; the worker’s preference and the practicality of restoring the employment relationship are the usual deciding factors.

Does it matter that I never had a permanent contract?

No. South African labour law does not require an employee to be on a permanent contract to claim unfair dismissal; the LRA’s protection extends to any person who works for another in exchange for remuneration, with very limited exclusions (true independent contractors, certain volunteers and a few other narrow categories). The form of the contract is irrelevant — the substance of the working arrangement is what counts.

If you have been dismissed from a temporary assignment and believe the dismissal was unfair — whether you were placed by a Temporary Employment Service, employed on a fixed-term contract, or assigned to a client under a non-permanent arrangement — Burger Huyser Attorneys’ Labour Law team can review the contract, advise on whether the dismissal is challengeable, and run the matter at the CCMA, the relevant Bargaining Council, or the Labour Court where required. The firm practises from its head office in Linden, Randburg (49 First Avenue, 011 888 0246) with branches across Gauteng including Sandton, Roodepoort, Centurion, Pretoria, Bedfordview, Alberton and Midrand, and has a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”). Initial consultations are booked directly through the relevant branch; bring the contract, the assignment letter, the payslips and any written communication about the dismissal so the timeline and the relevant employer can be confirmed at the first meeting.

NEEDS VERIFICATION: Confirm with the firm that Marius Ferreira (or another attorney in the Labour Law practice) is in fact taking temporary-work / TES unfair-dismissal instructions at the level described in the CTA before this article goes live. The CTA is supported by firm-reference.md §2 (Labour Law scope) and §5 (Marius Ferreira as Labour Law specialist consultant), but the firm should confirm whether TES placements are handled in-house, by referral, or only in the conventional permanent-employment unfair-dismissal context.