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Ending Employment

Avoiding Automatically Unfair Dismissal

Some dismissal reasons are so clearly wrong that the law doesn't allow the employer to justify them at all — these are 'automatically unfair' under LRA s 187. Unlike ordinary unfair dismissal (where the employer can defend the reason and process), there is no defence to an automatically unfair dismissal once the ground is proven — only the question of remedy remains, and compensation can reach 24 months' pay.

Key facts

  • Automatically unfair grounds include: dismissal for pregnancy or a pregnancy-related reason; for exercising a right under the LRA (e.g. referring a dispute); for participating in a protected strike; for union membership or activity; and — critically — dismissal that amounts to unfair discrimination on a listed or arbitrary ground (LRA s 187(1)(f)).
  • There is no substantive defence once an automatically unfair ground is established — the employer's belief that it had good reason is irrelevant to that specific ground.
  • These claims can be referred directly to the Labour Court, and compensation is not capped at 12 months as with ordinary unfair dismissal — it can reach 24 months' remuneration.
  • The overlap with discrimination law matters here: dismissing someone connected to a discriminatory reason — even one also linked to performance or conduct — risks the whole dismissal being found automatically unfair, not just procedurally flawed.

The law that applies

  • Labour Relations Act 66 of 1995 — s 187
  • Employment Equity Act 55 of 1998 — s 6

Practical steps

  1. Before any dismissal, check it isn't connected — even partly — to pregnancy, union activity, a protected right, or a discrimination ground.
  2. Keep the reason and process focused strictly on the legitimate ground (misconduct, incapacity, or operational requirements).
  3. Be especially careful with timing — a dismissal shortly after a protected activity (a grievance, a dispute referral, disclosing pregnancy) invites scrutiny even if unrelated.
  4. Get advice before proceeding if there's any overlap with a protected ground — the cost of getting this wrong is materially higher than an ordinary unfair dismissal.

Frequently asked questions

If an employee is genuinely underperforming but also happens to be pregnant, can I still dismiss for performance?

You can, but the process needs to be scrupulously clean and clearly unconnected to the pregnancy — the closer in time and the weaker the performance case, the more likely a commissioner infers the real reason was the pregnancy, which is automatically unfair.

Is dismissing someone for referring a CCMA dispute against me automatically unfair?

Yes — dismissing an employee for exercising a right under the LRA, including referring or participating in a dispute, is specifically listed as an automatically unfair ground.

Have a specific employee situation?

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This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney or labour law specialist.