LLexiSA

Labour Law

Unfair Dismissal in South Africa

Every employee in South Africa has the right not to be unfairly dismissed. Section 185 of the Labour Relations Act 66 of 1995 (LRA) protects employees against dismissals that are substantively unfair (no fair reason) or procedurally unfair (no fair process). If you have been dismissed, you generally have 30 days to refer an unfair dismissal dispute to the CCMA.

Key facts

  • Refer an unfair dismissal dispute to the CCMA within 30 days of the dismissal date.
  • A dismissal must be both substantively fair (a valid reason: misconduct, incapacity or operational requirements) and procedurally fair (a fair hearing).
  • The employer bears the onus of proving the dismissal was fair (s 192(2) LRA).
  • Remedies include reinstatement, re-employment or compensation of up to 12 months' pay (24 months for automatically unfair dismissals).
  • Dismissal for pregnancy, union membership, or exercising a statutory right is automatically unfair (s 187 LRA).

The law that applies

  • Labour Relations Act 66 of 1995 — ss 185–188, 191–194; Schedule 8 (Code of Good Practice: Dismissal)
  • Basic Conditions of Employment Act 75 of 1997 — ss 37–41 (notice and severance pay)

Leading cases

Sidumo v Rustenburg Platinum Mines Ltd [2007] ZACC 22; 2008 (2) SA 24 (CC)

A commissioner must decide fairness afresh on all the evidence — the test is whether the sanction was fair, not whether the employer's decision was reasonable.

NUMSA v Vetsak Co-operative Ltd 1996 (4) SA 577 (A)

Fairness is determined by balancing the interests of both employer and employee.

Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833 (LC)

Pre-dismissal procedure requires only an opportunity to state a case — not a criminal-style trial.

Practical steps

  1. Gather your dismissal letter, contract, payslips and any disciplinary records.
  2. Complete CCMA Form 7.11 (Referral of a dispute) within 30 days.
  3. Serve the referral on your employer and file proof of service with the CCMA.
  4. Attend conciliation; if unresolved, request arbitration (or refer to the Labour Court for automatically unfair dismissals or retrenchments).

Frequently asked questions

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

You must refer the dispute within 30 days of the date of dismissal. If you are late, you can apply for condonation and must show good cause for the delay.

What compensation can I get for unfair dismissal?

Up to 12 months' remuneration for an ordinary unfair dismissal, and up to 24 months for an automatically unfair dismissal under section 187 of the LRA. Reinstatement is the primary remedy where practical.

Is a dismissal without a hearing always unfair?

Usually procedurally unfair, yes. Schedule 8 of the LRA requires an investigation and an opportunity for the employee to respond to allegations before dismissal, though the process can be informal.

How does this apply to your situation?

Ask LexiSA. It will gather your facts, apply the law above, and give you a cited assessment of your position — free.

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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.