Dismissal from a job can be distressing, especially if you believe it was unfair. South African labour law provides robust protections for employees who are terminated without valid reason or due process. Proving unfair dismissal involves more than just claiming injustice—it requires evidence, procedure, and a clear understanding of your rights. This guide explains what constitutes unfair dismissal, what legal standards apply, and how to prove unfair dismissal under South African law.
Understanding the Legal Definition of Dismissal
What Qualifies as a Dismissal?
A dismissal, as defined in section 186(1) of the Labour Relations Act 66 of 1995, occurs when an employer ends an employment relationship unilaterally. This includes not renewing a fixed-term contract when an employee reasonably expected it to be renewed, the refusal to allow an employee to return to work after maternity leave, and situations where the employer makes continued employment intolerable and forces the employee to resign (known as constructive dismissal).
The Role of the Labour Relations Act
The Labour Relations Act (LRA) is the cornerstone of South African employment law. It ensures that any termination must be both substantively and procedurally fair. Substantive fairness refers to the reason for the dismissal, while procedural fairness relates to the process followed before dismissal.
Types of Unfair Dismissal
Automatically Unfair Dismissals
Certain reasons for dismissal are deemed automatically unfair under section 187 of the LRA. These include being dismissed for participating in lawful union activities, exercising legal rights, pregnancy, or whistleblowing. If proven, these cases carry harsher consequences for the employer, including compensation of up to twenty-four months’ remuneration or reinstatement.
Substantively Unfair Dismissals
Substantive unfairness occurs when the employer lacks a valid or justifiable reason for terminating employment. For example, dismissing someone for poor performance without evidence, or on vague allegations without investigation, would fall into this category.
Procedurally Unfair Dismissals
Even if there is a valid reason to terminate employment, the dismissal will still be unfair if the proper process is not followed. This includes the failure to conduct a fair disciplinary hearing, not informing the employee of the allegations, or denying them an opportunity to respond. The Labour Court’s decision in Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833 (LC) confirmed that a workplace disciplinary enquiry is not a criminal trial: what is required is a fair opportunity to be heard, not a strict replication of court procedure.
The Burden of Proof and Legal Tests
Who Must Prove What?
In a dispute before the Commission for Conciliation, Mediation and Arbitration (CCMA), the employee bears the burden of proving that a dismissal took place. Once this is established, section 192(2) of the LRA places the onus on the employer to prove that the dismissal was fair, both substantively and procedurally.
The Importance of Exhausting Internal Remedies
The Constitutional Court’s ruling in Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7 confirmed that employees must exhaust internal grievance procedures before resigning and claiming constructive dismissal. While this case specifically addressed constructive dismissal, the principle applies broadly: employees should first attempt to resolve workplace issues internally before seeking external remedies, as failure to do so may weaken their case.
Tests Applied by the CCMA
When reviewing a dismissal, a CCMA commissioner applies the “reasonable decision-maker” test laid down by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC), namely whether the decision reached by the employer is one that a reasonable decision-maker could have reached on the evidence. The commissioner examines whether the rule allegedly broken was known to the employee, consistently applied, and whether dismissal was an appropriate sanction for the offence. The Code of Good Practice for Dismissals (revised by Government Notice 3470, Government Gazette 53294, September 2025) provides detailed guidance on these standards.
Building Your Case: How to Prove Unfair Dismissal
Step One: Record the Dismissal
Document everything. Retain your termination letter, emails, text messages, and any related communications. If you were verbally dismissed, make a note of the date, time, and what was said.
Step Two: Identify Procedural Irregularities
Ask yourself whether you were given proper notice of a disciplinary hearing, whether you had time to prepare, and whether you were allowed representation. A lack of any of these elements can indicate procedural unfairness.
Step Three: Evaluate the Substantive Grounds
Consider the reason given for your dismissal. Is there concrete evidence of poor performance or misconduct? Were you ever warned or put on a performance improvement plan? If not, the substantive reason may be flawed. Understanding the distinction between substantive and procedural fairness is essential at this stage.
Step Four: Collect Witness Statements
Colleagues or co-workers who were present during relevant incidents or disciplinary processes can provide witness statements. These can support your version of events, especially when you were denied a chance to respond or were unfairly targeted.
Step Five: Secure Employment Documents
Ensure you have your employment contract, payslips, any written warnings, and internal policies. These can help you prove expectations and whether your employer followed their own rules.
The CCMA Process and Legal Recourse
Referring a Dispute to the CCMA
You must refer an unfair dismissal dispute to the CCMA within 30 days from the date of dismissal. The process begins with conciliation, where a commissioner tries to settle the matter between you and your employer.
Conciliation Outcomes
If the matter is resolved during conciliation, an agreement will be signed. If unresolved, you may elect to proceed to arbitration, where the commissioner will hear both sides and make a binding decision.
Arbitration and Compensation
If the commissioner finds the dismissal unfair, they can order reinstatement, re-employment, or compensation. Under section 194 of the LRA, compensation for ordinary unfair dismissals is capped at twelve months’ remuneration, but can be up to twenty-four months in cases of automatic unfairness.
Proposed Legislative Changes
The Labour Law Amendment Bill, 2025, published for public comment on 26 February 2026 (comment period closed 28 March 2026), proposes several changes relevant to unfair dismissal disputes. These include a proposed exclusion of employees earning above ZAR 1.8 million per annum from reinstatement or re-employment remedies (except in cases of automatically unfair dismissal), proposed changes to probation protections (employees in their first three months of employment may not be entitled to institute an unfair dismissal claim, though protections against automatically unfair dismissals remain), and proposed limitations on compensation for procedurally unfair dismissals. The Bill is currently awaiting formal introduction to Parliament and these amendments are not yet in force.
Difference Between Unfair and Unlawful Dismissal
Unfair Dismissal in Labour Law
Unfair dismissal is primarily governed by the LRA and concerns the fairness of the process and reason. It is handled through the CCMA and labour courts.
Unlawful Termination in Contract Law
Unlawful dismissal falls under civil contract law and involves breach of contract—such as terminating employment without notice as required by contract. These claims are typically handled in civil courts, not the CCMA.
Remedies Available for Employees
Reinstatement and Re-employment
Reinstatement places the employee back in the job as if the dismissal never happened. Re-employment, on the other hand, places the employee back in the job, but not necessarily under the same conditions.
Compensation Awards
Where reinstatement is not practical or desired, compensation may be awarded. The amount depends on the nature of the unfairness, how long the employee was out of work, and other mitigating factors. Be aware that your rights to final pay after dismissal are separate from any compensation awarded for unfair dismissal.
Final Thoughts
Proving unfair dismissal in South Africa requires a deep understanding of labour law, attention to procedural details, and well-documented evidence. Whether you were dismissed without just cause or denied a fair hearing, the law offers a clear framework for recourse through the CCMA. If you believe you were unfairly dismissed, acting quickly and strategically can significantly improve your chances of success.
Updated 19 May 2026 — Added the foundational case authorities that govern the substantive and procedural fairness tests: Sidumo v Rustenburg Platinum Mines 2008 (2) SA 24 (CC) for the reasonable-decision-maker test, and Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833 (LC) on the simplified approach to procedural fairness. Added the section 186(1) definition of dismissal (including the maternity-return scenario), the section 187 automatic-unfairness anchor, the section 192(2) onus rule, and the section 194 compensation cap reference.
