Unfair Dismissal: Do You Have a Case?
Getting fired is stressful. But not every dismissal is legal. South African law protects workers from being fired unfairly. Here's how to know if you have a case and what you can do about it.
Key Takeaways
- Your employer needs a valid reason AND a fair process to fire you
- If either the reason or the process was unfair, you have a case
- You have 30 days from dismissal to refer to the CCMA
- Compensation can be up to 12 months' salary (24 months for automatically unfair dismissals)
- Keep your dismissal letter, payslips, and any written warnings
What makes a dismissal unfair?
A dismissal is unfair if your employer didn't have a good reason to fire you, OR if they didn't follow a fair process. Both must be present for a dismissal to be fair.
- No valid reason (you didn't actually do what they say you did)
- No hearing or chance to tell your side
- The punishment doesn't fit the offence (fired for being 5 minutes late once)
- Other people who did the same thing weren't fired (inconsistency)
Automatically unfair reasons
Some reasons for dismissal are ALWAYS unfair, no matter what. These carry higher compensation (up to 24 months' salary):
- Pregnancy or any reason related to pregnancy
- Joining or participating in a trade union
- Refusing to do illegal work
- Race, gender, religion, disability, or sexual orientation
- Exercising any right under labour law
- Taking part in a legal strike
What is a fair process?
Even if your employer has a good reason to fire you, they must follow a fair process. For misconduct, this means a disciplinary hearing where you can defend yourself.
- You must be told what you're accused of (in writing)
- You must get time to prepare your defence
- You can bring a representative (colleague or union rep)
- You can question witnesses against you
- The chairperson must be impartial (not your direct boss)
What can the CCMA do?
If the CCMA finds your dismissal was unfair, they can order reinstatement (your job back with back-pay) or compensation (money). Most awards are compensation of 3-12 months' salary depending on how unfair the dismissal was.
Ready to see your own numbers?
Use the CCMA Deadline Tracker