Unfair Dismissal in South Africa (LRA s185 to s194)

South African law does not let an employer dismiss at will. Every dismissal must have a fair reason and follow a fair process, and the Labour Relations Act sets out exactly what counts as a dismissal, what is automatically unfair, and what an employee can recover if a dismissal fails that test.

This guide is general legal information, not legal advice. For advice on your own situation, consult an attorney, or contact Legal Aid South Africa (0800 110 110) if you cannot afford one.

Information last verified on 23 July 2026. This page addresses unfair dismissal under the Labour Relations Act. For the specific consultation process and severance formula that apply to a retrenchment, see our dedicated guide.

What Counts as a Dismissal

Section 186(1) of the Labour Relations Act 66 of 1995 defines "dismissal" far more broadly than simply being fired. It includes an employer terminating a contract of employment with or without notice; an employer failing to renew a fixed-term contract on the same or similar terms where the employee reasonably expected renewal, or offering renewal only on less favourable terms; an employer refusing to let an employee resume work after she took maternity leave, or after an absence of up to four weeks before and up to eight weeks after the birth of her child; and dismissal linked to a transfer of a business as a going concern under section 197 or 197A.

It also includes constructive dismissal: where an employee terminates the contract, with or without notice, because the employer made continued employment intolerable. The employee resigns, but the law treats the resignation as a dismissal because the employer's conduct effectively forced it.

Substantive and Procedural Fairness

A dismissal survives scrutiny only if it is both substantively and procedurally fair. Substantive fairness means the employer had a fair reason, falling into one of three categories: the employee's conduct, the employee's capacity (poor performance or ill health), or the employer's operational requirements, covered separately on our retrenchment and severance pay guide. Procedural fairness means the employer followed a fair process before dismissing, which for conduct and capacity dismissals generally means investigating, informing the employee of the allegations, and giving the employee a real opportunity to respond before a decision is made.

A dismissal that has a fair reason but followed an unfair process, or the reverse, is still unfair. The CCMA or Labour Court weighs both, and can find a dismissal fair in substance but unfair in procedure, or the other way round, which affects the remedy that follows.

Automatically Unfair Dismissals

Section 187 lists grounds that make a dismissal automatically unfair, regardless of any process followed. These include dismissal for participating in a protected strike or protest, or for refusing to do the work of an employee who is on a protected strike; dismissal to compel an employee to accept a demand on a matter of mutual interest; dismissal for exercising a right under the Act or participating in its proceedings; dismissal for pregnancy or a pregnancy related reason; dismissal that amounts to unfair discrimination on a listed ground such as race, gender or disability; dismissal linked to a transfer under section 197 or 197A; and dismissal for making a protected disclosure under the Protected Disclosures Act.

An automatically unfair dismissal cannot be referred to CCMA arbitration; it goes to the Labour Court, and it cannot use con-arb (see our CCMA referral guide for which disputes can and cannot use con-arb).

Remedies: Reinstatement, Re-Employment or Compensation

Section 193(1) gives three possible remedies for an unfair dismissal: reinstatement, re-employment, or compensation. Section 193(2) makes reinstatement or re-employment the default outcome the CCMA or Labour Court must order, unless: the employee does not want to be reinstated or re-employed; the circumstances around the dismissal are such that a continued employment relationship would be intolerable; it is not reasonably practicable for the employer to reinstate or re-employ the employee; or the dismissal is unfair only because the employer did not follow a fair procedure, in which case compensation rather than reinstatement is the appropriate remedy.

Compensation Caps

Where compensation is awarded instead of, or because reinstatement is not ordered, section 194 sets limits. For an ordinary unfair dismissal, based on conduct, capacity, operational requirements or a procedural failure, compensation may not exceed 12 months' remuneration calculated at the employee's rate of pay on the date of dismissal. For an automatically unfair dismissal, compensation must be just and equitable and may not exceed 24 months' remuneration. For an unfair labour practice, compensation may not exceed 12 months' remuneration. These are ceilings, not entitlements: the actual award depends on the facts, including the employee's losses and conduct.

How a Dismissal Dispute Reaches the CCMA

An employee, or in some disputes the employer, refers the dismissal to the CCMA, or to a bargaining council with jurisdiction, using LRA Form 7.11, generally within 30 days of the dismissal. Our CCMA referral guide covers the form, service requirements, con-arb, and legal representation rules in full.

Related Reading

If the dismissal was for operational requirements, see retrenchment and severance pay for the consultation process and severance formula. For the notice you are owed on termination regardless of the reason, see notice periods in South Africa. The South Africa labour law section links every guide in this series, and the South Africa Laws hub covers the wider site.

Frequently Asked Questions

What is considered an unfair dismissal in South Africa?

A dismissal is unfair unless it is both substantively fair, meaning the employer had a fair reason relating to the employee's conduct, capacity or the employer's operational requirements, and procedurally fair, meaning a fair process was followed before the decision was made. Section 186(1) of the Labour Relations Act also extends "dismissal" to situations such as non-renewal of a fixed-term contract and constructive dismissal.

What is constructive dismissal?

Constructive dismissal is where an employee resigns, with or without notice, because the employer made continued employment intolerable. Although the employee formally resigns, section 186(1) of the Labour Relations Act treats it as a dismissal because the employer's conduct effectively forced the resignation.

What is an automatically unfair dismissal?

An automatically unfair dismissal is one falling within the grounds listed in section 187 of the Labour Relations Act, such as dismissal for pregnancy, for participating in a protected strike, or for unfair discrimination. These carry a higher compensation cap of up to 24 months' remuneration and cannot go through CCMA arbitration; they go to the Labour Court instead.

What compensation can I get for an unfair dismissal?

Compensation is capped at 12 months' remuneration for an ordinary unfair dismissal or an unfair labour practice, and 24 months' remuneration for an automatically unfair dismissal, under section 194 of the Labour Relations Act. These are maximums; the actual amount awarded depends on the facts of the case.

Will I get my job back if my dismissal is found unfair?

Reinstatement or re-employment is the default remedy under section 193(2), but the CCMA or Labour Court will order compensation instead where you do not want to return, the relationship has broken down irretrievably, reinstatement is not reasonably practicable for the employer, or the dismissal was unfair only for a procedural reason.

How long do I have to challenge my dismissal?

A dismissal dispute generally must be referred to the CCMA, using Form 7.11, within 30 days of the dismissal, or of a later final decision by the employer such as an unsuccessful internal appeal. If you miss the deadline, the CCMA may permit a late referral where you show good cause.