Unfair dismissal is one of the most common disputes in South African labour law. Employees who believe they have been unfairly dismissed may refer their dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant bargaining council.
However, not every dismissal is unfair. The Labour Relations Act 66 of 1995 sets out the circumstances in which a dismissal will be considered fair or unfair, and the remedies available to employees.
This guide explains what unfair dismissal is, how to challenge it, and what remedies may be available under South African labour law.
What Is Unfair Dismissal?
A dismissal is unfair if an employer fails to prove that:
- There was a fair reason for the dismissal (substantive fairness), and
- A fair procedure was followed before the dismissal (procedural fairness).
In terms of the Labour Relations Act, dismissals are usually justified on one of the following grounds:
- Misconduct
- Poor work performance
- Incapacity due to ill health
- Operational requirements (retrenchment)
- Incompatibility
If the employer cannot justify the dismissal on one of these grounds, the dismissal may be found to be unfair.
Substantive vs Procedural Fairness
Substantive Fairness
Substantive fairness relates to whether there was a valid reason for the dismissal.
For example:
- Theft or dishonesty
- Gross insubordination
- Serious workplace misconduct
However, even where misconduct is proven, dismissal may still be unfair if the sanction is disproportionate to the offence.
Procedural Fairness
Procedural fairness concerns the process followed before dismissing an employee.
A fair procedure usually requires:
- Notice of the allegations
- A disciplinary hearing
- An opportunity for the employee to state their case
- Consideration of mitigating factors
Failure to follow a fair disciplinary process can render a dismissal procedurally unfair.
Automatically Unfair Dismissals
Certain dismissals are regarded as automatically unfair in terms of the Labour Relations Act.
Examples include dismissal because of:
- Trade union membership or activities
- Participation in a lawful strike
- Pregnancy
- Whistleblowing
- Discrimination
Automatically unfair dismissals are treated more seriously by labour tribunals.
How to Refer an Unfair Dismissal Dispute
Employees who believe they have been unfairly dismissed must refer the dispute to the Commission for Conciliation, Mediation and Arbitration or a bargaining council.
The dispute must normally be referred within 30 days of the dismissal. The process usually involves:
- Conciliation – an attempt to resolve the dispute through mediation
- Arbitration – a formal hearing where a commissioner decides the dispute
- Con/arb – a conciliation is conducted, and if the matter is unresolved then immediately proceeds to arbitration. In certain circumstances an objection can be lodged so that the process is then a conciliation only and the arbitration is then held at a later date.
If the referral is late, the employee must apply for condonation explaining the delay.
What happens at the CCMA?
At arbitration, both parties may present:
- Witness testimony
- Documentary evidence
- Legal arguments
The commissioner will then determine whether the dismissal was fair or unfair. In certain cases, parties may be represented by lawyers, depending on the nature of the dispute and the discretion of the commissioner.
Remedies for Unfair Dismissal
If a dismissal is found to be unfair, several remedies may be awarded.
Reinstatement
Reinstatement means the employee is returned to their previous position as if the dismissal never occurred. This is the primary remedy under South African labour law.
Re-employment
The employee may be re-employed in a different or comparable position.
Compensation
Compensation may also be awarded. Maximum compensation is generally:
- Up to 12 months’ remuneration for ordinary unfair dismissal
- Up to 24 months’ remuneration for automatically unfair dismissal
When Should You Contact a Labour Lawyer?
Legal advice is often important when:
- You have been dismissed and want to challenge the decision
- You are preparing for a CCMA arbitration
- You are facing a disciplinary hearing
- You need advice on labour law rights or employer obligations
Early legal advice can significantly affect the outcome of labour disputes.
Contact Berkowitz Attorneys
Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa, with extensive experience in CCMA disputes, disciplinary hearings, and Labour Court litigation.
If you require advice regarding an unfair dismissal or labour law dispute, you may contact:
Craig Berkowitz
Tel: 083 453 1822
E-mail: cblaw@netactive.co.za
Frequently Asked Questions About Unfair Dismissal
How long do I have to refer an unfair dismissal dispute?
A dispute must normally be referred to the CCMA within 30 days of the dismissal.
Can an employee be dismissed without a warning?
Yes, but usually only in cases of serious misconduct, such as theft, fraud, or gross insubordination.
Can I be reinstated after being dismissed?
Yes. Reinstatement is the primary remedy if a dismissal is found to be unfair.
Do I need a lawyer for the CCMA?
Legal representation is not always permitted automatically, but a labour lawyer can assist in preparing and presenting your case.
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