Unfair Dismissal South Africa 2025: Employee Protection Blueprint

Employment stability is essential in a high-unemployment economy. The Labour Relations Act 66 of 1995 (LRA) guarantees that no worker can be dismissed without a fair reason and a fair process. This blueprint explains how to assert your rights during disciplinary action, what counts as automatically unfair dismissal, and how to win remedies at the CCMA or Labour Court.

⚖️ Key insight: Every dismissal must pass a two-part test: the employer needs a valid reason and must follow a procedurally fair process.

The Two-Part Test for Fair Dismissal

1. Substantive fairness – was there a valid reason?

• Misconduct: Theft, fraud, assault, or gross insubordination typically justify dismissal when proven.
• Poor performance: Employers must set performance standards, provide training or guidance, and give time to improve.
• Incapacity: Applies to illness, injury, or inability to perform inherent job requirements. Alternatives should be considered before dismissal.
• Operational requirements: Restructuring, retrenchments, or economic downturns require meaningful consultation and fair selection criteria.

2. Procedural fairness – were proper steps followed?

• Conduct an investigation before issuing charges.
• Provide written notice of allegations, the rule breached, and possible consequences.
• Give reasonable time to prepare a response and disclose evidence beforehand.
• Hold a hearing chaired by an impartial chairperson.
• Allow representation by a fellow employee or union official.
• Give the employee a chance to present evidence, call witnesses, and cross-examine.
• Provide a written outcome and reasons, including the right to appeal internally.

Your Rights During Disciplinary Proceedings

• Request company policies, evidence packs, and witness statements in advance.
• Insist on interpretation services if language is a barrier.
• Record your mitigation factors—long service, clean record, and personal circumstances matter.
• Appeal internally within the prescribed timeframe (often five working days).
• Keep copies of all notices, minutes, and correspondence to support a CCMA referral.

Automatically Unfair Dismissal Scenarios

Some dismissals violate fundamental rights and are automatically unfair, regardless of the employer’s reason:

• Dismissal for pregnancy, parental, adoption, or paternity leave.
• Retaliation for whistle-blowing or exercising constitutional rights.
• Discrimination based on race, gender, religion, disability, sexual orientation, or union affiliation.
• Participation in protected strikes or union activities.
• Refusal to perform hazardous work when safety measures are inadequate.

Workers who prove automatic unfairness can claim reinstatement with back pay or compensation up to 24 months’ remuneration.

Remedies Available at the CCMA or Labour Court

1. Reinstatement: Return to the same job as if never dismissed.
2. Re-employment: Rehire into a similar position, often with adjusted duties.
3. Compensation: Up to 12 months’ salary for ordinary unfair dismissals, or 24 months for automatically unfair cases.
4. Costs orders: Rare but possible if a party acts vexatiously or with gross negligence.

📅 Deadline alert: File your unfair dismissal dispute with the CCMA within 30 days of termination. Late referrals require a condonation application.

Step-by-Step: Taking Your Case to the CCMA

1. Complete LRA Form 7.11 online or at a CCMA office.
2. Serve the employer and keep proof of service (email, fax, or sheriff return).
3. Attend conciliation: A commissioner mediates; successful settlements are made orders of the Commission.
4. Request arbitration if unresolved. Bring witnesses, documents, and an organized bundle.
5. Receive an award: Usually issued within 14 days. Awards can be certified for enforcement through the Labour Court or Sheriff.

Strategic Tips for Employees

• Keep a work diary capturing performance discussions, warnings, and policy updates.
• Ask for regular feedback to avoid surprises in performance hearings.
• If you are suspended, insist on written reasons and the duration.
• Consult a labour lawyer or union official early; strategic advice can secure settlements before hearings.
• Explore alternative dispute resolution, such as bargaining councils, when applicable to your sector.

Frequently Asked Questions

Do I need a lawyer at the CCMA?

Not usually. Legal representation at arbitration is limited in misconduct or incapacity cases unless both parties and the commissioner agree, or the matter is legally complex.

Can I claim damages for stress or reputational harm?

The CCMA focuses on employment remedies. For damages beyond compensation, consider a civil claim in the High Court.

What if I resigned under pressure?

If you can prove you were forced to resign (constructive dismissal), refer the dispute to the CCMA within 30 days of resignation.

How long does a CCMA case take?

Conciliation is scheduled within 30 days of referral. Arbitration can take 60–90 days depending on availability and complexity.

Legal References

1. Labour Relations Act 66 of 1995, Sections 188–193.
2. Code of Good Practice: Dismissal (Schedule 8, LRA).
3. Constitutional Court judgment: National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) [2020] ZACC 26.
4. Commission for Conciliation, Mediation and Arbitration (CCMA) Rules, 2024 revision.
5. Department of Employment and Labour, Annual Labour Market Review 2024.