Unfair dismissal and the CCMA

Depending on the industry you are working in, you will have to contact the CCMA or the respective bargaining council if there is one in your industry. For clarity on whether it should be the CCMA or a bargaining council, you may approach the CCMA directly and/or phone the national call centre on 0861 16 16 16, visit them online on www.ccma.org.za and/or mailing them on ho@ccma.org.za.

The following reasons for dismissal are invalid. The dismissal will be regarded as automatically unfair if the worker is dismissed for:

  • exercising any of the rights given by the LRA or participating in proceedings in terms of the Act.
  • taking part in lawful union activities (ie organising members in the trade union)
  • taking part in a legal strike or other industrial action or protest action
  • refusing to do the work of someone who was on strike
  • being pregnant, or any reason related to pregnancy
  • refusing to accept a change in working conditions
  • reasons that are due to arbitrary discrimination (except that an employer may retire someone who has reached the normal or agreed retirement age, or if the reason is based on an inherent requirement of the job, for example being able to speak a certain language in order to do the job properly)
  • a reason related to a transfer following a merger of the company with another organisation
    where the employee is dismissed following a disclosure made by him in terms of the “Disclosure of Information Act”.

The employee is likely to get compensation if:

  • the employee does not want the job back
  • the circumstances surrounding the dismissal would make the relationship between employee and employer intolerable
  • it is not reasonably practical for the employer to take the employee back
  • the dismissal is unfair merely because the employer failed to comply with a fair procedure, but there was a good reason for dismissal (procedural or substantive unfairness).

The employee can get up to 12 months’ wages as compensation for an unfair dismissal. If it was an automatically unfair dismissal the employee could get up to 24 months’ wages as compensation.

Before referring a dispute to the CCMA, it is necessary that the public should know the following:

The CCMA does not charge money for referring a dispute; You don’t need an attorney and/or labour consultant to refer a dispute to the CCMA for conciliation;
By approaching a labour lawyer to complete the forms on your behalf will not necessarily improve your chances of succeeding, nor will it guarantee success of your case.

People who would like to register disputes for conciliation at the CCMA need to complete LRA Form 7.11. These forms can be obtained free of charge from the offices of the CCMA or downloaded from the CCMA website www.ccma.org.za.

It is important to note that there is a time frame involved, and employees need to complete this form within 30 days from the date when the dispute arose. These 30 days are calendar days and include weekends and public holidays. It excludes the day the dispute arose but include the last day (30th day).

If an employee fails to comply in referring the dispute within the 30 days, he/she need to apply for a process called condonation. In applying for condonation the employee will have to provide:

  • Reasons for lateness: The reasons why the matter was not referred within the prescribed 30 days;
  • Prospects of success: The employee should explain with good reasons why he/she believes that the dismissal is unfair;
  • Prejudice: (Reasons why the employee that he/she will be prejudiced)
  • General: Any other general related information with regards to the dispute