Unfair dismissal and the CCMA

Losing your job is a shock. It can hit your income, your family, your sense of who you are and your mental health all at once. If you believe you were dismissed unfairly, the law gives you a way to challenge it, and it costs nothing to start.

The Labour Relations Act 66 of 1995 protects employees against unfair dismissal. Disputes are usually dealt with by the Commission for Conciliation, Mediation and Arbitration, known as the CCMA. The most important thing to know is that you must act quickly.

What makes a dismissal unfair

Under the Labour Relations Act, a dismissal must be fair in two ways.

• A fair reason. The law accepts three broad kinds of reason: your conduct (misconduct), your capacity (for example poor work performance or ill health), and the employer's operational requirements (such as restructuring or retrenchment). The reason must be real and serious enough to justify dismissal.
• A fair procedure. Before dismissing you, an employer should normally tell you what the problem is, give you time to prepare and give you a fair chance to respond, often at a disciplinary hearing. For poor performance, you should usually have been given guidance and a chance to improve first.

Some dismissals are automatically unfair, for example dismissing someone for joining a trade union or taking part in lawful union activities, or because of unfair discrimination on grounds such as race, gender, sexual orientation, religion or disability.

If you were dismissed after an accusation at work, such as theft or harassment, your employer still had to investigate fairly and give you a proper chance to answer. Accusations at work must be dealt with fairly for everyone involved.

You may also have a case if your employer made working conditions so unbearable that you felt you had no choice but to resign. This is called constructive dismissal. It can be harder to prove, so get advice before you resign if you can.

Gather your evidence

Collect as much as you can, as soon as you can:

• your contract of employment and any workplace policies
• recent payslips
• the dismissal letter, or a note of when and how you were told
• any notice of a disciplinary hearing, and the outcome
• warnings, performance reviews, emails and messages
• the names of people who saw what happened

If you were dismissed without a letter, write down the date, who told you, what they said and who was there. You can also ask your employer in writing for the reasons for your dismissal.

How to refer a dispute to the CCMA

1. Check whether a bargaining council covers your sector. Some industries have a bargaining council that deals with disputes instead of the CCMA. If you are not sure, ask at a CCMA office or your trade union.
2. Complete the referral form. The CCMA has a standard referral form. You can get it from a CCMA office or the CCMA website, and staff at a CCMA office can help you fill it in.
3. Give a copy to your employer. You must serve a copy of the referral on your employer, for example by email or by hand, and keep proof that you did.
4. Submit it to the CCMA within 30 days. Include proof that your employer received a copy. If you are late, include an application explaining why, which is called a condonation application.
5. Keep a copy of everything. Note your case number when you receive it.

Referring a dispute to the CCMA is free.

Conciliation

The first step is usually conciliation. A CCMA commissioner meets with you and your employer to help you reach an agreement. It is informal, and the commissioner does not decide who is right.

An agreement might include getting your job back, a payment, a fair reference or other terms. You don't have to accept an offer you are not happy with. If you do reach an agreement, it is put in writing and both sides are bound by it.

If no agreement is reached, the commissioner will issue a certificate saying the dispute is unresolved. In some cases, conciliation and arbitration happen on the same day.

Arbitration

If conciliation fails, you can ask for the dispute to go to arbitration. There is a time limit for this too, so don't delay.

At arbitration, a commissioner hears evidence from both sides, including witnesses and documents, and then makes a decision called an award. Both sides are bound by the award. If the commissioner finds the dismissal was unfair, they may order that you are reinstated, re-employed or paid compensation.

Some types of dispute, such as certain automatically unfair dismissals, go to the Labour Court instead of arbitration. The commissioner can tell you which route applies to you.

Getting help with your case

• Your trade union, if you are a member, can advise you and may represent you.
• Legal Aid South Africa and university law clinics may be able to give free advice. See finding legal help you can afford.
• Lawyers are generally not allowed at conciliation, and are allowed at arbitration only in some cases, so many people present their own case. The CCMA process is designed to make that possible.

If you lost your job because of a false accusation, our guide if you are falsely accused may also help. Losing a job is a major stress, so look after your health and lean on people you trust.

Getting support

• Legal Aid South Africa Advice Line: 0800 110 110
• Lifeline South Africa: 0861 322 322 (24/7)
• SADAG Suicide Crisis Helpline: 0800 567 567 (free, 24/7), if you have thoughts of harming yourself

Men for Change does not offer legal representation, but our support team can help you find services: contact the support team. More helplines are on our resources page.