Unfair Dismissal in South Africa: First 30-Day Steps

Key takeaways

• Establish the dismissal before arguing that it was unfair.
• Record both the statutory dismissal date and any later final internal-appeal decision.
• Test substantive fairness—the reason—and procedural fairness—the process—separately.
• Misconduct, incapacity and operational requirements require different facts and procedures.

1. Confirm whether a dismissal occurred

The most common dismissal is an employer ending a contract with or without notice. The Labour Relations Act also treats specified events as dismissals. These include certain fixed-term-contract non-renewals or less favourable renewals where the required reasonable expectation existed, refusal to allow return after maternity leave, selective refusal to re-employ, resignation because the employer made continued employment intolerable, and resignation after a section 197 or 197A transfer where the new employer provided substantially less favourable circumstances.

Do not collapse every workplace problem into dismissal. A warning, suspension, demotion, promotion dispute, benefit dispute or disciplinary step short of termination may instead be an unfair-labour-practice issue, with a different 90-day referral framework. A voluntary resignation or agreed separation is not automatically a dismissal. The constructive-dismissal glossary explains the narrow resignation-based concept, while the unfair-dismissal glossary owns the short general definition.

Create a dismissal identity record with:

• the employer's full legal name and workplace;
• the position, contract type and relevant employment dates;
• who communicated the termination and the exact words or record relied on;
• the notice date, final working date and date employment ended;
• the stated reason; and
• any internal appeal and final outcome date; and
• whether the employee says the termination was direct, fixed-term, selective re-employment, constructive or transfer-related.

If the employer says the employee resigned, absconded, retired, reached the end of a contract or agreed to separate, preserve the underlying communications and do not label the event before the facts are reviewed.

2. Fix the dates before debating the merits

For an ordinary termination, section 190 states that the dismissal date is generally the earlier of the date the contract terminated or the employee left service. Specific rules cover fixed-term renewal, refusal to resume work and refusal to reinstate or re-employ.

Section 191 generally requires referral within 30 days of dismissal or, if later, within 30 days of the employer's final decision to dismiss or uphold the dismissal. The CCMA explains that this later date can apply after an internal appeal. Record the original termination date and appeal outcome rather than replacing one with the other. If the appeal status, authority or finality is disputed, obtain a case-specific calculation and protect the earliest plausible deadline.

Do not assume a request for reasons, grievance, settlement discussion or silence extends time. Form LRA 7.11 may be referred while notice is being served.

If 30 days may already have passed, prepare the referral and condonation material urgently. Condonation requires good cause and depends on the facts; lateness is not cured merely by explaining that negotiations continued.

3. Identify the employer's real reason

Ask for the outcome letter and compare it with the charge sheet, hearing record, consultation notices, performance material and what decision-makers said. The label on the letter does not end the enquiry.

For a dismissal that is not automatically unfair, section 188 recognises three possible fair-reason categories:

1. conduct, such as alleged misconduct;
2. capacity, including performance or ill health; or
3. the employer's operational requirements, commonly called retrenchment.

Each category needs its own evidence. Misconduct turns on the rule, breach, consistency, sanction and procedure. Performance turns on the standard, support and opportunity to improve. Ill health raises incapacity, alternatives and accommodation. Retrenchment raises operational rationale, alternatives, consultation, selection and severance. The retrenchment glossary owns the short concept.

Escalate where the evidence suggests protected industrial action, exercise of Labour Relations Act rights, pregnancy, unfair discrimination, a section 197 transfer or a protected disclosure. These are among the section 187 categories that can make a dismissal automatically unfair, but evidence must still connect the dismissal to the prohibited reason.

4. Test reason and procedure separately

Substantive fairness asks whether there was a fair reason. Procedural fairness asks whether a fair process was followed. A strong case theory identifies each disputed element and the evidence on both sides.

For misconduct, record:

• the rule or standard and whether it was valid and reasonable;
• how and when the employee knew, or should have known, about it;
• the competing evidence about the alleged conduct;
• the harm, role and disciplinary record relied on;
• comparable cases and consistency; and
• alternatives, progressive discipline and the stated reason for dismissal.

The current Code says discipline is primarily corrective, though serious or repeated misconduct can justify dismissal. Usually the employee should receive detailed allegations, reasonable time to prepare and respond on guilt and sanction, assistance from a fellow employee or union representative and, where reasonably possible, a comfortable language. The process need not always be formal.

That does not make every procedural difference fair. Compare what happened with the Act, the current Code, the applicable collective agreement, employment contract and workplace procedure. Use the disciplinary-hearing checklist for pre-dismissal preparation; this article owns the post-dismissal assessment.

5. Apply the current dismissal code, not a stale summary

The Minister issued the current Code of Good Practice: Dismissal under section 203(2A) of the Labour Relations Act with effect from publication on 4 September 2025. The notice expressly repealed the former Schedule 8 Code of Good Practice: Dismissal and the 1999 Code of Good Practice Based on Operational Requirements.

The Code is intentionally general and covers misconduct, probation, performance, ill health, other incapacity and operational requirements. Each case is unique and justified departures may occur. Small-business circumstances matter, but a less formal process does not remove the need for a fair reason and procedure.

Keep the code version used. Older templates may still cite the repealed Schedule 8 code and must be reconciled with current law.

6. Build an evidence pack that proves the sequence

The dismissal evidence pack owns the reusable collection tool. For this dispute, organise the material by issue rather than uploading an unfiltered folder.

Start with:

• contract, job description, payslips and relevant policies;
• warnings, performance plans or accommodation discussions;
• allegations, hearing or consultation notices and exchanged evidence;
• the employee's representations, hearing record and outcome;
• dismissal letter, notice, appeal and final appeal result;
• relevant messages, rosters, access and leave records;
• witnesses and what each can prove;
• retrenchment material where relevant; and
• final payslip and certificate of service.

Build a chronology with the date, event, source, decision-maker and disputed fact. Keep originals and export message threads with context. Do not alter documents, coach witnesses or take privileged, personal or confidential records you are not entitled to possess.

Map what establishes dismissal against what the employer may rely on to prove fairness, including adverse facts and evidence gaps.

7. Select the correct forum and make the first referral

A bargaining council has first jurisdiction where both parties fall within its registered scope. The CCMA is the referral forum if no council has jurisdiction. A valid private dispute-resolution agreement may also affect the route. The South African Government's referral guidance specifically warns that a bargaining council, statutory council or private agreement can displace the ordinary CCMA path.

Check:

• the employer's sector and activities;
• the workplace, job and geographical area;
• bargaining-council or public-service coverage;
• the parties' legal names and service details; and
• any private dispute-resolution agreement.

Use Form LRA 7.11 for conciliation, including con-arb where applicable. Current CCMA guidance allows online referral, office assistance, or emailing the downloaded form to the regional office with a copy to the employer. Save the submitted form, employer-service proof and forum receipt.

The CCMA checklist owns referral preparation. The CCMA process guide owns the full conciliation, con-arb, arbitration, award and enforcement sequence, while the CCMA glossary owns the short institution definition.

8. Know what happens after conciliation

The council or CCMA must attempt conciliation. This is a confidential effort to resolve the dispute, not a merits judgment. If the dispute remains unresolved and a certificate is issued, or 30 days have expired since receipt without resolution, the next route depends on the alleged reason and the Act.

Conduct, capacity, unknown-reason and specified constructive or transfer-related disputes ordinarily proceed to arbitration. Automatically unfair and many operational-requirements disputes ordinarily proceed to the Labour Court, subject to exceptions. A separate request and further 90-day period commonly apply; LRA 7.11 does not automatically complete that step.

Record the referral receipt date, conciliation date, any written extension, certificate date, unresolved date and next referral deadline. If the matter is scheduled as con-arb, prepare for arbitration before attending even if settlement remains possible.

9. Define the remedy without promising it

Section 193 permits reinstatement, re-employment or compensation after an unfair-dismissal finding. Reinstatement or re-employment is generally primary unless the employee does not want it, continued employment would be intolerable, it is not reasonably practicable, or the dismissal was unfair only because of procedure.

Compensation must be just and equitable. The general ceilings are 12 months' remuneration for ordinary unfair dismissal and 24 months for automatically unfair dismissal. A ceiling is not a standard award or guaranteed settlement value.

Record the preferred remedy, return-to-work practicality and current earnings. Do not sign a waiver or settlement without understanding its release language.

10. Keep final pay and unemployment steps separate

Dismissal fairness, final pay and unemployment benefits are distinct. The Basic Conditions of Employment Act addresses termination payments and a certificate of service. Request an itemised final payslip, preserve UIF records and check the benefit route promptly. These steps do not replace or extend the 30-day dismissal referral.

11. Escalate high-risk facts early

Obtain urgent advice where the deadline is uncertain; resignation was pressured; pregnancy, discrimination, union activity or a protected disclosure may be involved; several employers or a labour broker appear; the council is uncertain; urgent relief may be needed; evidence is disappearing; or a settlement contains a broad waiver.

Use the labour-law hub for issue orientation and the CCMA-representation service page for service intent. Compare current professionals through the lawyer directory or law-firm directory, then verify labour-law experience, forum rights, scope, urgency, fees and who will do the work.

Final control checklist

• The employer, employee, contract and termination event are identified.
• The dismissal date and any later final appeal decision are recorded separately.
• The earliest plausible 30-day referral deadline is protected.
• Dismissal is separated from resignation, mutual separation and unfair labour practice.
• The alleged reason is classified as conduct, capacity, operational requirements or potentially automatically unfair.
• Substantive and procedural fairness are analysed separately.
• The current 4 September 2025 dismissal code is being used.
• The chronology links every material fact to its source evidence.
• Bargaining-council, CCMA and private-agreement jurisdiction have been checked.
• Form LRA 7.11, employer service and forum receipt are preserved.
• Conciliation and the next arbitration or Labour Court step are tracked separately.
• Remedy, final pay, UIF and settlement are not being treated as one claim.

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