- Unfair dismissal cases usually turn on whether the employer had a valid reason and followed a fair process.
- Automatically unfair dismissals involving discrimination, pregnancy, whistleblowing, or the exercise of legal rights can result in severe consequences for employers.
- Recent court and CCMA decisions show that employers cannot avoid their obligations by using retrenchments, contract clauses, or flawed disciplinary processes.
When people walk into my office after being dismissed, they’re often angry, shocked, or disbelieving. That’s because losing a job isn’t just a legal event; it’s a human one that affects their dignity and financial stability.
And in our first conversations, the same question comes up again and again: “Was it fair?”
Unfair dismissal is the issue that South Africans bring to the Commission for Conciliation, Mediation and Arbitration (CCMA) more than any other. Yet the law is clearer and more reasonable than many realise. Fairness isn’t about perfection; it’s about whether the employer had a valid reason, followed a fair process, and acted in a way a reasonable decision-maker would.
What counts as an unfair dismissal?
Under the Labour Relations Act (LRA), a dismissal may be unfair for three reasons:
1. Substantive unfairness
This is about the reason for the dismissal. A dismissal is substantively unfair when the employer cannot show a valid, fair reason.
Examples include:
- Dismissal for a rule the employee didn’t know about.
- Dismissal for minor misconduct where a warning would have been appropriate.
- Dismissal for poor performance without support, training, or clear expectations.
2. Procedural unfairness
This is about the process. Even if the reason is valid, the dismissal may still be unfair if the employer:
- Failed to hold a hearing.
- Didn’t give the employee a chance to respond.
- Didn’t investigate properly.
- Didn’t provide notice of the allegations.
3. Automatically unfair dismissal
These are the most serious. A dismissal is automatically unfair if the reason relates to:
- Pregnancy or maternity.
- Discrimination.
- Whistleblowing.
- Exercising a legal right (such as referring a dispute to the CCMA).
Automatically unfair dismissals carry far heavier consequences for employers because they involve violations of fundamental rights. The CCMA or Labour Court may award up to 24 months’ remuneration in compensation, double the ordinary unfair dismissal cap, and reinstatement is far more likely, often with full back pay.
Where discrimination is involved, employers may also face additional damages under the Employment Equity Act.
In serious cases, courts may award costs against the employer, especially where the dismissal was retaliatory or in bad faith. Beyond the legal consequences, these findings carry reputational and organisational risks, often prompting policy changes, training, or corrective action inside the business.
Important cases
1. Retaliation disguised as retrenchment: Mqikela v Pristo Response Trading (Labour Court, 2025)
What happened: A woman raised concerns about unfair treatment at work and then exercised her right to refer a dispute to the CCMA. Instead of engaging with her grievance, however, her employer told her, literally the next day, that her position was being considered for retrenchment. She hadn’t been warned, consulted, or told that her job was at risk.
The Labour Court saw through it immediately. The “retrenchment” was a cover for retaliation.
Why it matters: Employees cannot be punished for asserting their rights. When the timing and conduct point to retaliation, the dismissal automatically becomes unfair.
2. Contract clauses don’t override fairness: Biyana v National Consumer Commission (CCMA, 2025)
What happened: The employee’s contract included an automatic termination clause, a provision stating that her employment would automatically terminate if the CEO’s term of office ended. When that happened, the employer simply told her that the contract had ended and that no hearing was necessary.
She challenged it, and the CCMA agreed with her.
Even if a contract says employment ends automatically, the employer still has to follow a fair process.
Why it matters: Employers cannot use contract wording to sidestep the Labour Relations Act. Fairness is not optional.
3. Protected disclosures and process failures: Truworths Ltd v Peter (Labour Appeal Court, 2025)
What happened: An employee made disclosures she believed were protected under the law, essentially raising concerns about wrongdoing. Shortly afterwards, disciplinary action followed. The employer insisted the two were unrelated, but the process was rushed and poorly handled.
The Labour Appeal Court emphasised that when whistleblowing is involved, employers must be particularly careful. Any procedural misstep can turn a dismissal into an automatically unfair one.
Why it matters: Whistleblowers are protected. Employers, therefore, have to separate the disclosure from the disciplinary process and follow every procedural step meticulously.
4. Age discrimination and retirement: Motor Industry Staff Association v Great South Autobody (Constitutional Court, 2024)
What happened: Several employees continued working past their normal retirement age with the employer’s full knowledge. Years later, the employer suddenly dismissed them, claiming they had reached retirement age, which they had already passed long before.
The Constitutional Court held that this was discriminatory. If an employer allows someone to work beyond retirement age, they cannot later use age as the reason to dismiss them unless it happens at the point the employee reaches that age.
Why it matters: Age-based dismissals are tightly regulated. Once an employee works past retirement age, the employer has to provide a different, fair reason for dismissal.
Common scenarios where employers get it wrong
1. Misconduct without a hearing: An employee is dismissed for “insubordination” after a heated exchange, but no hearing is held. Outcome: Procedurally unfair.
2. Poor performance without support: An employee is dismissed for not meeting targets but wasn’t given any training, coaching, or a performance plan. Outcome: Substantively and procedurally unfair.
3. Retrenchment decisions made in advance: The employer has already chosen who to cut before consultation begins. Outcome: Unfair process.
4. Constructive dismissal: The workplace becomes intolerable, whether because of bullying, exclusion, or impossible demands, and the employee resigns. Outcome: If the employer caused the intolerable conditions, the resignation may be treated as a dismissal.
It’s equally important to clarify what the law does not consider unfair:
- A fixed-term contract ending naturally.
- A genuine retrenchment with proper consultation.
- A dismissal after repeated warnings and a fair hearing.
- A probationary dismissal where the employer provided guidance and feedback.
Remember: fairness is about reasonableness, not perfection.
Understanding the CCMA
People often imagine the CCMA as a single, imposing office somewhere in Johannesburg. In reality, the Commission operates through multiple offices and hearing venues across South Africa, and cases are heard close to where the dispute arises.
The CCMA process in plain language
1. Conciliation: A commissioner meets with both parties to try to resolve the dispute. It’s informal, confidential, and usually completed within 30 days.
2. Arbitration: If conciliation fails, the matter moves to arbitration. A commissioner hears evidence and makes a binding decision.
3. Timeframes: Employees must refer unfair dismissal disputes within 30 days of dismissal.
4. Representation: A lawyer or self-representation.
In closing
Fairness in dismissal law is built on two pillars: a valid reason and a fair process. When employers follow both, disputes are rare. When they don’t, the consequences can be significant, not only legally but in the trust and dignity of the people affected.
For employees, understanding these principles brings clarity in uncertain times. For employers, it’s a reminder that fairness is not an administrative burden; it’s a safeguard for good decision-making.
If you need to consult or have a question on these matters, email ann-suhet@vdm.law or phone 011 394 1606 Ext 105. Questions may also be sent to expert@conviction.co.za
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