Quick answer
Choose the route by identifying the employer action, the legal right involved, the stage of the process and the remedy you want. An upcoming disciplinary hearing is usually handled first through the internal process. A warning, suspension or demotion may fit an unfair-labour-practice route. Dismissal creates a dismissal dispute. Discrimination, a protected disclosure, union activity, a collective agreement or a contract can create a different or overlapping route.
How to use this guide
“The hearing is unfair” is not yet a route. Convert it into a specific act, date, category, forum and remedy.
Route matrix
| Current fact | Possible route to investigate | Immediate focus |
|---|---|---|
| Charges issued; no outcome yet | Internal disciplinary process | Understand charges, prepare response, request what is reasonably needed |
| Preventive or punitive suspension | Internal process and possibly unfair labour practice | Record pay, duration, reason, procedure and prejudice |
| Warning or discipline short of dismissal | Possibly unfair labour practice | Identify sanction, date, fairness complaint and remedy |
| Employment terminated | Unfair dismissal or possibly automatically unfair dismissal | Record reason, effective date, forum and 30-day risk |
| Charge follows protected report | Protected Disclosures Act and LRA route may overlap | Preserve report, recipient, knowledge, detriment and causation |
| Charge linked to protected characteristic | Employment Equity Act route may overlap | Identify ground, comparator, conduct and date |
| Collective agreement governs discipline | Bargaining-council or agreement-enforcement route | Obtain agreement and coverage details |
| Employer breaches a contractual procedure | Contractual/Labour Court issue may arise | Identify exact promise, breach, urgency and remedy |
The table is a triage tool, not a conclusion. More than one route can exist, and the correct forum can change after conciliation.
Route 1: the internal disciplinary process
Where you have only been notified of a hearing, use the internal process to clarify and answer the allegations. The Code of Good Practice: Dismissal effective from 4 September 2025 provides a practical, context-sensitive framework. Under that framework, procedural fairness ordinarily calls for allegations the employee can understand, adequate preparation time, a chance to answer, and assistance from a trade-union representative or fellow employee.
Check the disciplinary code, contract and collective agreement for additional steps. Ask for specific missing information, material evidence, accommodation, assistance or a short postponement where necessary. The CCMA does not ordinarily pre-authorise or manage an employer's internal hearing.
The disciplinary-hearing service and disciplinary-hearing evidence guide support this stage.
Route 2: unfair labour practice before dismissal
The Labour Relations Act definition includes listed categories such as unfair suspension or other disciplinary action short of dismissal, as well as certain promotion, demotion, probation, training, benefits and reinstatement issues. A warning or suspension is not automatically unfair; it must fit the category and facts.
Record whether suspension is paid, its purpose and duration, the procedure used, the effect on your work and the relief sought. Current public CCMA material generally refers to a 90-day referral period for an unfair-labour-practice dispute.
General unhappiness about investigation steps does not necessarily create a separately arbitrable dispute. Classify the employer action rather than filing simply because a hearing is pending.
Route 3: ordinary unfair dismissal
If employment ends, identify the stated reason and effective date. Ordinary dismissal disputes commonly ask whether there was a fair reason and a fair procedure. Misconduct cases may examine the workplace rule, knowledge, breach, consistency and whether dismissal was a fair sanction.
Current CCMA guidance generally refers to a 30-day conciliation referral period for unfair dismissal. Many ordinary misconduct-dismissal disputes can proceed to arbitration after conciliation, subject to jurisdiction and the applicable route. A bargaining council may receive the referral instead of the CCMA.
The unfair dismissal glossary, unfair dismissal service and dismissal evidence pack support this branch.
Route 4: automatically unfair dismissal or protected LRA rights
If the real reason for dismissal is alleged to be a prohibited reason under the Labour Relations Act, the classification may be automatically unfair rather than ordinary misconduct dismissal. Examples can include qualifying participation in statutory rights or proceedings, union activity, refusal to accept certain demands, or a qualifying protected disclosure.
Do not choose the label only because the employer's conduct feels retaliatory. Identify the protected act, who knew about it, the decision-maker, timing, inconsistent explanations and evidence of the real reason. Automatically unfair dismissal allegations generally follow conciliation and then Labour Court adjudication rather than ordinary CCMA arbitration, subject to proper classification.
Route 5: protected disclosure
The Protected Disclosures Act applies to disclosures that meet statutory conditions and concern specified improprieties. A routine personal grievance is not automatically a protected disclosure. Preserve the original words, recipient, supporting facts, date, employer knowledge and later occupational detriment.
Treatment short of dismissal and dismissal may use different Labour Relations Act routes. Obtain advice on the protected status, causation, forum and relief rather than assuming one “whistleblowing” label resolves every issue.
Route 6: unfair discrimination
The Employment Equity Act may apply where the charge, procedure or sanction is linked to a listed or qualifying arbitrary ground, including race, sex, pregnancy, family responsibility, disability, religion, age or another protected ground. Identify the ground and facts linking it to the treatment.
Different treatment is not automatically legal discrimination. Compare roles, conduct, decision-makers, sanctions and explanations. Discrimination routes, periods and post-conciliation forums differ from an ordinary unfair-labour-practice or dismissal route.
Route 7: collective agreement or bargaining council
A bargaining council can have jurisdiction because of the employer's sector and scope. A collective agreement may also regulate charges, timeframes, representation, appeals and dispute resolution. Obtain the complete current agreement and confirm who is covered.
Do not file with the CCMA until jurisdiction has been checked. The CCMA glossary, CCMA checklist and CCMA representation service help prepare once the forum is identified.
Route 8: contract or urgent court relief
A contract or collective agreement may promise a procedure beyond the statutory minimum. In limited cases, an urgent interdict or contractual claim may be considered. Urgency, alternative remedies, the exact right and the practical relief required are critical.
Court intervention in an incomplete disciplinary process is not the default. A belief that the employer made a procedural mistake does not by itself mean urgent relief will be granted. Obtain fact-specific advice before spending time and cost on this route.
Classify the case on one page
Complete these fields:
- Employer act: the precise charge, suspension, warning, demotion or dismissal.
- Effective date: when it happened, not only when you learned of it.
- Primary route: internal, unfair labour practice, dismissal, discrimination, disclosure, agreement or contract.
- Alternative route: any overlapping claim supported by separate facts.
- Forum: internal chairperson, bargaining council, CCMA, Labour Court or another body.
- Remedy: postponement, fair hearing, withdrawal of sanction, reinstatement, compensation or other relief.
- Deadline: the earliest conservative date until advice confirms the trigger.
- Proof: the three documents that best establish the act and route.
The broader labour-law hub and employment dispute pack can support the classification file.
FAQs
Can I use more than one route?
Yes, if distinct facts support each route. Keep the elements, forum, trigger and remedy for every route separate.
Does a pending hearing mean I can refer an unfair dismissal?
No dismissal exists until employment has actually been terminated. A different pre-dismissal act, such as qualifying suspension, may need separate classification.
Does an internal appeal stop the external deadline?
Do not assume so. Calculate the statutory period separately from the internal appeal and obtain advice on the applicable trigger.
Is every retaliation allegation automatically unfair dismissal?
No. Identify the protected act or ground, the later employer action and evidence of causation. The legal route depends on those facts.
Related Lexuno paths
Related articles
Source notes
Legal note
This article is general legal information for South African readers. It is not legal advice. Speak to a qualified legal professional about your specific facts before taking action.