Recently, the South African judiciary system has seen an uprising in the number of unfair dismissal cases, with the Labour Court, Labour Appeal Court and the Commission for Conciliation, Mediation and Arbitration (CCMA) seemingly dealing with more cases than they can handle.

Unfair Dismissal

Whilst Alternative Dispute Resolution (ADR) mechanisms and out of court settlements are becoming increasingly more popular as a result of the overloaded justice systems, many individuals are still determined to battle out their cases in front of a Commissioner or Judge, believing they’ve been unfairly dismissed.

However, despite feeling that they have been unfairly dismissed, not everyone has been able to actually prove that they have been unfairly dismissed – so, what is an unfair dismissal?

Unfair dismissal is the termination of employment without good cause or a fair procedure, or both.


Automatically Unfair Dismissals

Any dismissal will always be automatically unfair if an employee has been dismissed for any of the following reasons:

  1. Exercising any rights obtained from the Labour Relations Act (LRA).
  2. Participating in lawful union activities, or a protected strike.
  3. Refusing to accept the workload of an individual on strike.
  4. Any reason relating to pregnancy. (i.e falling pregnant, needing time off as a result of the pregnancy, etc).
  5. Refusing to accept unilateral changes to their current working conditions.

Substantive fairness

Substantive fairness is having regard to whether there has been a fair reason for the dismissal, in light of the surrounding circumstances. Some examples of fair reasons would be misconduct, incapacity and retrenchment.

If an employee has acted negligently in any manner (misconduct), or is no longer able to perform the tasks required of them, possibly due to extenuating circumstances such as illness or disability (incapacity), then these would be fair reasons for dismissal. Furthermore, when a business is required to cut down on staff, retrenchment and redundancy constitute valid reasons for a dismissal.

Procedural fairness

Procedural fairness deals with the procedure implemented leading up to the dismissal. There are specific procedures which the employer is required to follow which may depend on the reason for the dismissal.

The manner in which dismissal procedures are conducted may vary from company to company, but procedure will always be deemed to have not been followed if the employee does not receive an opportunity to present their version of events and respond to any allegations. Generally, this is referred to as the disciplinary procedure.

The onus of proof:

The law of unfair dismissal in South Africa is based on the assumption that an employer is in an inherently more powerful position than an employee. Without regulation, an employer is in a position to easily exploit vulnerable employees. The labour law therefore attempts to eradicate this imbalance in the power relationships.

Arguably the most important factor to consider when dealing with unfair dismissals is to remember with whom the onus lies on to prove certain facts. The employee must prove that they were an employee of the company under the direction of the employer, and that they had since been dismissed.

The employer is then required not only to prove that the dismissal was procedurally and substantively fair, but also to show that the affected sanction of dismissal was an appropriate penalty in light of the circumstances of the employee’s transgression and all the relevant facts in their totality.

One important takeaway from the law of unfair dismissals is that both employer and employee should document any and all interactions amongst each other, especially with regards to any disciplinary procedures and sanctions. Furthermore, when considering taking legal action with regards to unfair dismissal, it is advisable to ensure that you have familiarised yourself with the latest Labour Relations Act provisions or consult with an attorney.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on or 021 556 9864 to speak to one of our attorneys.


Liam Naidoo

Liam Naidoo

Liam Naidoo joined CK Attorneys as a Candidate Attorney in 2024.

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