(This article is for general informational purposes only and does not constitute formal legal advice)
In South Africa, the law doesn't just protect your job—it protects the fairness of how you lose it. Under the Labour Relations Act 66 of 1995 (LRA), a dismissal isn't just a "firing"; it's a legal process that must be both substantively and procedurally fair.
Here is a simplified guide to understanding unfair dismissal, the CCMA process, and where the Labour Court fits in.
1. The Two Pillars of a Fair Dismissal
For a dismissal to be legal in South Africa, the employer must prove two things:
Substantive Fairness: Was there a good reason to fire the person? (e.g., serious misconduct, inability to do the job, or the company is retrenching).
Procedural Fairness: Was a fair process followed? (e.g., did the employee get a hearing? Could they state their case? Did they have a representative?).
Key Case Law: In Sidumo v Rustenburg Platinum Mines Ltd (2007), the Constitutional Court held that a commissioner must decide if a dismissal was fair by looking at the totality of circumstances, not just by deferring to the employer’s decision.
2. Types of Unfair Dismissal
Misconduct: Breaking company rules.
Incapacity: Poor performance or ill health.
Operational Requirements: Retrenchment (Section 189).
Automatically Unfair (Section 187): These are the "big no-nos." If you are fired for being pregnant, for your race/religion, for whistleblowing (protected disclosure), or for joining a union, the dismissal is automatically unfair.
3. The CCMA Process: Steps to Justice
If you believe you were unfairly dismissed, you have 30 days from the date of dismissal to refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Step A: Conciliation
This is a "friendly" meeting. A CCMA commissioner sits with both parties to try and reach a settlement (like a payout or getting your job back).
No lawyers are usually allowed at this stage.
If you settle, the matter is over. If not, the commissioner issues a certificate of non-resolution.
Step B: Arbitration
If conciliation fails, you request Arbitration within 90 days. This is a formal mini-trial.
Witnesses are called, and evidence is presented.
The Commissioner makes a final, binding decision called an Arbitration Award.
4. When Does the Labour Court Step In?
The Labour Court is a specialist court with the same status as a High Court. It generally enters the picture in two ways:
A. Direct Referral (Adjudication)
For complex cases like automatically unfair dismissals or large-scale retrenchments, the CCMA cannot make a final ruling. After a failed conciliation, these cases go straight to the Labour Court for a judge to decide.
B. Review of CCMA Awards (Section 145)
You cannot "appeal" a CCMA award just because you don't like it. You can only Review it in the Labour Court.
To win a review, you must prove there was a defect—meaning the commissioner committed a gross irregularity or reached a conclusion that "no reasonable decision-maker could have reached" (the Sidumo test).
Important Note: Under Section 145(7) of the LRA, if an employer wants to review an award to stop it from being enforced, they must usually pay security (up to 24 months of the employee’s salary) into the court.
(This article is for general informational purposes only and does not constitute formal legal advice)