This guide is the overview. It explains what a dismissal is in law, the two tests a commissioner applies, what the CCMA can and cannot do for you, and where to go next for the detail. It explains the law generally and is not advice about your own case.
First, the clock
Before anything else, work out your date. Everything below is easier to act on with time still on it.
- Unfair dismissal: 30 days from the date of dismissal.
- Unfair labour practice: 90 days.
- Discrimination under the Employment Equity Act: 6 months.
Detail: How long do you have to refer a case to the CCMA?
If you are already late: What CCMA condonation actually requires
What counts as a dismissal
This sounds obvious and it is not. The law defines dismissal to cover more than the situation where someone hands you a letter. It includes, in broad terms, an employer ending the contract with or without notice, a fixed term employee whose contract is not renewed when they reasonably expected renewal, and an employee who resigns because the employer made continued employment intolerable.
That last one is constructive dismissal. It is harder to prove than people expect. It is not enough that the job became unbearable. You have to show the employer caused it, was at fault for causing it, and had no fair reason for what it did.
If you resigned voluntarily, in the ordinary sense, you were not dismissed and the CCMA route for unfair dismissal is not open to you.
The two tests
Once dismissal is established, a commissioner looks at two separate questions. An employer can satisfy one and fail the other, and failing either can make the dismissal unfair.
Substantive fairness: was there a fair reason? The recognised reasons are, broadly, misconduct, incapacity including poor performance and ill health, and the employer's operational requirements, which is retrenchment. The employer has to show the reason was real and that dismissal was an appropriate response to it.
Procedural fairness: was the process fair? In broad terms this covers whether you were told what you were accused of, given a reasonable chance to respond, allowed assistance, and given a decision by someone who had not already made up their mind.
This is the part most people underestimate. A dismissal can be unfair purely because of how it was done, even where the reason itself was sound.
Detail: Substantive and procedural fairness: the two tests explained
Some dismissals are automatically unfair
A separate and more serious category exists for dismissals connected to things like trade union membership or activity, pregnancy, or discrimination on listed grounds. These are treated as automatically unfair, and the remedies available are larger.
If you think your dismissal falls here, that is a reason to get proper advice rather than to rely on any guide, including this one.
What the CCMA actually does
The CCMA is a dispute resolution body, not a court and not a law firm. Referring a dispute is free. You do not need a lawyer to refer one, and legal representation at arbitration is restricted in some kinds of case.
The process runs in stages:
Referral. You complete and submit the referral form, usually LRA Form 7.11 for a dismissal dispute.
Conciliation. A commissioner meets both sides and tries to help you settle. Conciliation is private and confidential and runs on a without prejudice basis, so what is said there is generally not used against you afterwards.
Arbitration. If conciliation does not resolve it, the dispute can go to arbitration, where a commissioner hears evidence and makes a binding decision.
Some matters are set down as con-arb, where conciliation and arbitration are scheduled on the same day.
What you can actually get
If a dismissal is found unfair, the possible outcomes are, broadly, reinstatement, re-employment, or compensation. Compensation for an ordinary unfair dismissal is capped, and the cap is higher for automatically unfair dismissals.
Most disputes do not run to a full arbitration award. Many settle at conciliation, for amounts well below what people expect when they start. Going in with a realistic number is worth more than going in angry.
What to do this week
- Fix your date. Write down the day you were dismissed. If your letter is unclear, ask your employer in writing to confirm your last day of employment.
- Collect the paper. Your contract, your dismissal letter, any warnings, the hearing notice and outcome if there was one, your last payslips, and anything in writing between you and your employer about the incident.
- Write down what happened while it is fresh, in order, with dates. You will not remember it this clearly in four months.
- Work out whether you have a case worth referring, which is a different question from whether you feel wronged.
Where FairCase fits, and where it does not
We give you an honest read on whether an unfair dismissal case is strong or weak: a probability score out of 100 with the calculation shown, a settlement range, the fairness analysis, and the risks. The deadline check is free.
We are not a law firm, we do not represent you, and we do not tell you what you want to hear. Every other party in this market makes money when you proceed. We do not, so when the honest answer is that your case is weak, the report says so. Knowing that in five minutes is worth more than finding it out in eight months.