What is a fair reason for dismissal in South Africa?

A dismissal in South Africa is fair only if two things are true at the same time. The employer must have a fair reason, and it must follow a fair procedure. The Labour Relations Act 66 of 1995 recognises only three fair reasons: your misconduct, your incapacity, which covers both ill health and poor work performance, and the employer's operational requirements, which is the legal term for retrenchment. If the reason does not fit one of those three, the dismissal is unfair. If it fits but the procedure was unfair, the dismissal is still unfair, although the remedy is usually smaller.

This guide is part of our Discipline at work: warnings, hearings and dismissal, which links every guide on the topic.

The Act does not spell out every detail. That job is done by the Code of Good Practice: Dismissal, 2025, issued under section 203 of the Act, which commissioners and judges must take into account. It came into force on 4 September 2025 and replaced Schedule 8 of the Act and the separate code on retrenchments, so older articles that cite Schedule 8 describe the previous version. This article walks through each fair reason, the procedure that goes with it, which reasons are never fair, and what to do if your dismissal does not measure up.

The three fair reasons

Misconduct

Misconduct means you broke a rule. Item 8 of the 2025 Code asks whether you broke a rule or standard that applies at work, whether it was valid and reasonable, whether you knew or could reasonably have been expected to know it, how important the rule is, what actual or potential harm your conduct caused, whether the employer has applied the rule consistently, and whether dismissal was an appropriate sanction. Item 9 adds that dismissal is generally appropriate only if continuing the relationship has become intolerable. Theft, assault, gross insubordination and serious dishonesty are the classic examples where dismissal for a first offence can be fair, and item 7 confirms that serious misconduct may be a single instance. Lateness, minor negligence and a first instance of rudeness are usually not, because the Code treats discipline as corrective and expects graduated steps, such as counselling and warnings, before dismissal for less serious conduct. Our guide to verbal, written and final warnings explains those steps.

Incapacity

Incapacity means you cannot do the job, through no fault of your own. It comes in two forms.

Poor work performance requires the employer to show, under items 19 and 20 of the 2025 Code, that you knew or should have known the standard, that the standard was reasonably achievable, that you were given evaluation, guidance, training or counselling and a reasonable time to improve, that you still fell short, and that dismissal was an appropriate response. You must also be given a chance to respond before dismissal. The Code accepts that managers, senior employees and highly skilled professionals may not need a warning that their job is at risk. The bar for a new employee on probation is lower than for someone with years of service.

Ill health or injury requires the employer to investigate how serious your condition is and how long it is likely to last, to consider alternatives to dismissal such as adapted duties, a different post or a period of unpaid leave, and to let you state your case before deciding. Dismissal is a last resort. See can I be dismissed for being off sick for the detail. The 2025 Code also recognises incapacity that has nothing to do with health, such as imprisonment, and incompatibility, meaning an inability to work in harmony with the employer's culture or colleagues. Our guide on incapacity versus misconduct explains each form.

Operational requirements

Operational requirements are the employer's economic, technological, structural or similar needs. This is retrenchment. The reason is about the business, not about you, and the procedure is the consultation process in section 189 of the Labour Relations Act, with Part G of the 2025 Code giving the detail. The employer must give written notice inviting consultation, disclose its reasons, consider alternatives, agree or apply fair and objective selection criteria, and pay severance of at least one week's remuneration for each completed year of service. See what are my rights during a retrenchment consultation.

What a fair procedure looks like

The procedure differs by category, but for misconduct item 11 of the 2025 Code sets a clear pattern. Usually, before deciding to dismiss, the employer should tell you what you are accused of, preferably in writing and in enough detail to understand it, give you a reasonable time to prepare and to make representations on both the allegations and the sanction, allow you to be helped by a colleague or union representative, and, where reasonably possible, let you speak in a language you are comfortable with. Telling you the outcome and the reason, and reminding you that you can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council, are no longer listed in the Code but remain good practice.

This does not have to be a court-style hearing. The Code says the enquiry does not have to be formal and should suit the allegation and the size of the employer, and it allows small businesses a simpler approach. What it calls for is a genuine dialogue and a fair opportunity to respond, not a formal trial. But a dismissal with no notice of the charge or no chance to answer will usually be procedurally unfair. Our guide on being fired without a disciplinary hearing covers the common variations.

Reasons that are automatically unfair

Some reasons are so unacceptable that the Act treats the dismissal as automatically unfair. The employer cannot argue that the reason was fair. These include dismissal because you took part in a protected strike, because you belong to a union or took part in its activities, because you are pregnant or for a reason related to pregnancy, because you refused to accept a demand about a matter of mutual interest such as new pay or hours, because you made a protected disclosure about wrongdoing, because of a transfer of the business, or on a ground of unfair discrimination such as race, sex, age, disability, religion or HIV status. Discrimination is also dealt with under the Employment Equity Act 55 of 1998. Our guide on automatically unfair dismissals covers each ground and how to prove the link.

Compensation for an automatically unfair dismissal is capped at 24 months' remuneration, double the 12 month cap for other unfair dismissals. These claims usually go to the Labour Court rather than CCMA arbitration.

Who has to prove what

You must prove that you were dismissed. That is easy if you have a dismissal letter, and harder if the employer says you resigned or abandoned your job. Once dismissal is established, the employer must prove that both the reason and the procedure were fair. If it cannot show a rule, a warning, a performance standard or a consultation record, its case is weak.

A worked example

This example is illustrative.

Nomvula is a bookkeeper earning R22 000 a month with six years' service. Her manager tells her on a Tuesday that the accounts are "a mess" and that Friday is her last day. There is no written warning on her file, no performance review that mentions problems, and no meeting where standards were discussed. Her dismissal letter says "poor performance".

Poor performance is a recognised fair reason, so the employer's difficulty is not the category. It is proof. To succeed it must show that Nomvula knew the standard, was told she was falling short, and was given help and time to improve. With nothing on file, it cannot. The dismissal is also procedurally unfair, because she was never invited to respond before the decision was made.

Nomvula refers the dispute to the CCMA within 30 days. At conciliation the employer offers three months' salary, R66 000. She asks for reinstatement. The employer says the relationship has broken down. At arbitration the commissioner finds the dismissal substantively and procedurally unfair and, because reinstatement is not practicable in a two-person finance team, awards compensation. The award could be anywhere up to 12 months' remuneration, which is R264 000, and depends on what the commissioner considers just and equitable. Read how much compensation the CCMA can award for the factors that move the figure.

What to do this week

1. Get the reason in writing. If you only have a verbal dismissal, email HR asking for the written reason and the date of dismissal.
2. Match the reason to a category. Is it misconduct, incapacity or operational requirements? If it is none of these, or if it looks like a disguised version, note that.
3. List the procedural gaps. No charge sheet, no hearing, no warnings, no consultation, no chance to respond.
4. Diarise day 30 from your last day of work. That is your CCMA deadline, and the CCMA deadlines calculator works it out.
5. Ask for your personnel file, disciplinary record and the disciplinary code.
6. Phone the CCMA on 0861 16 16 16 to confirm whether a bargaining council covers your sector.
7. Claim UIF now. It does not affect your dispute.

Documents to gather

Your contract, job description, the last six payslips, any warnings or performance reviews, the charge sheet or notice of allegations, minutes or recordings of any hearing, the dismissal letter, the disciplinary code, the section 189 notice if it was a retrenchment, your own written timeline, and the names of witnesses. If you suspect an automatically unfair reason, add anything that links the dismissal to it, such as the date you told the employer you were pregnant or the date you joined the union.

A realistic timeline

• Day 0. Dismissal.
• Days 1 to 25. Request reasons, gather documents, complete and serve the referral form. See how to refer an unfair dismissal.
• Day 30. Referral deadline. After this you need condonation.
• About 30 days later. Conciliation. Many cases settle.
• Within 90 days of the certificate. Request arbitration.
• Weeks to months later. Arbitration hearing, then an award within about 14 days of the hearing closing.

Common mistakes and what they cost

• Accepting "the boss said so" as a reason. The employer must fit the dismissal into one of the three categories and prove it. Do not assume it can.
• Focusing only on procedure. A procedural win alone usually attracts a lower award than proving the reason itself was unfair.
• Resigning to avoid a hearing. A resignation is very hard to convert into a dismissal claim.
• Missing the 30 day deadline. Condonation is not guaranteed and the delay counts against you.
• Throwing away warnings and reviews. They show whether the employer followed its own process.

Your rights vs the employer's rights

You have the right not to be dismissed without a fair reason and a fair procedure, to know the case against you, to respond to it, to be assisted by a colleague or shop steward, to written reasons, and to refer a dispute for free. The employer has the right to set reasonable rules and standards, to discipline employees who break them, to dismiss for serious misconduct without prior warnings, to manage poor performance and incapacity, and to restructure or reduce its workforce for genuine operational reasons, provided it follows the process the law requires.

If you cannot afford an attorney

Referring an unfair dismissal to the CCMA is free, and so is conciliation and arbitration. Phone 0861 16 16 16. If your sector has a bargaining council, refer the dispute there instead. Your union, if you have one, can represent you at no cost. The Department of Employment and Labour helps with unpaid wages, notice and leave. Legal Aid South Africa on 0800 110 110 assists people who pass its means test.

At CCMA arbitration for misconduct and incapacity dismissals, legal representation is at the commissioner's discretion, so the process is designed for people without attorneys. If your case is an automatically unfair dismissal headed for the Labour Court, or the employer has hired a labour lawyer, read what labour matters cost before deciding.

Frequently asked questions

People often ask whether an employer can dismiss for a first offence. It can, if the misconduct is serious enough that continued employment is intolerable, which is why theft and assault differ from lateness. Others ask whether being on probation removes their protection. It does not. A probationary employee can still be unfairly dismissed, though the employer's burden on poor performance is lighter. A third question is whether a fixed term contract ending counts as dismissal. Usually not, unless you reasonably expected it to be renewed.