What is an automatically unfair dismissal?

Most unfair dismissal cases are arguments about whether the employer had a good enough reason and followed a fair process. A small category is different: the reason itself is prohibited, and no amount of procedure can rescue it.

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

Section 187 of the Labour Relations Act 66 of 1995 sets out those reasons. A dismissal for one of them is automatically unfair, which means the employer cannot argue that the dismissal was nevertheless justified. The only real fight is about what the actual reason for the dismissal was.

The list

A dismissal is automatically unfair if the reason is:

Participation in a protected strike or in protest action that complies with the Act.

A refusal to do the work of an employee who is on protected strike, unless the work is necessary to prevent danger to life, personal safety or health.

Employees' refusal to accept a demand in respect of a matter of mutual interest between them and the employer, such as a change to wages or working conditions. Before 2015 the Act spoke of a dismissal intended to compel acceptance of the demand; the amended wording looks at the refusal itself. The Labour Court has held that this limb protects employees acting collectively rather than a single employee, and an employer with a genuine operational need to restructure may still retrench fairly, so this is contested ground.

Exercising a right conferred by the Act, or participating in proceedings under it. Dismissing somebody for referring a dispute to the CCMA falls here, and so does dismissing somebody for joining a trade union or taking part in its lawful activities, because freedom of association is a right the Act confers.

Pregnancy, intended pregnancy, or any reason related to pregnancy. Section 187(1)(e) covers this expressly, and it extends beyond the pregnancy itself to matters connected with it, including the leave taken around the birth. Since Van Wyk in October 2025 that leave is a shared parental leave entitlement rather than separate maternity leave, and our guide to parental leave explains the interim scheme.

Unfair discrimination, directly or indirectly, on an arbitrary ground, including race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

A transfer, or a reason related to a transfer, of a business as a going concern. Our guide on what happens to employees when a business is sold explains why dismissing staff to deliver a business without them falls here.

A protected disclosure made under the Protected Disclosures Act, which is the whistleblower provision.

Why the label matters

Three consequences follow, and together they change the shape of the case.

No justification is available. In an ordinary unfair dismissal the employer defends the reason. Here it generally cannot: if the reason is on the list, the dismissal is unfair. The employer's defence has to be that the reason was something else. Section 187(2) contains only two exceptions, both for discrimination: a dismissal may be fair if the reason is based on an inherent requirement of the particular job, and a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for that kind of work.

Compensation doubles. An ordinary unfair dismissal attracts compensation of up to twelve months' remuneration. An automatically unfair dismissal attracts up to twenty-four months. Our guide on how much compensation the CCMA can award sets out the caps across the different claims.

The forum changes. These disputes are referred to the CCMA for conciliation, but if conciliation fails they are adjudicated by the Labour Court rather than by CCMA arbitration. That means pleadings, discovery, representation, and a longer and more expensive process. Referring an automatically unfair dismissal to arbitration instead of to the Labour Court is a common and costly error.

The real fight is about the reason

Because no justification is possible, the case turns almost entirely on causation: what was the true reason for the dismissal?

Employers rarely say the prohibited thing out loud. A pregnant employee is dismissed for poor performance that was never raised before; a shop steward is retrenched in a restructuring that affects nobody else; a whistleblower is dismissed weeks after reporting something for a misconduct that has long been tolerated.

Courts approach this as a question of the dominant or proximate cause, and they look at the evidence surrounding the decision rather than the label the employer put on it. Which means the employee's task is to build a picture:

Timing. What happened, and when. A dismissal three weeks after a pregnancy was announced, or a fortnight after a grievance was lodged, invites an explanation.

The paper trail before the event. Performance reviews, commendations, salary increases and bonuses that contradict a sudden narrative of incapacity.

Comparators. How others in the same position were treated. Somebody dismissed for conduct that others do without consequence is evidence of a different reason.

Shifts in the employer's explanation. Where the reason given at the hearing differs from the reason in the letter, and both differ from the reason in the CCMA papers, that inconsistency is itself evidence.

What was said. Remarks about the pregnancy, the union, the disclosure. Employees frequently do not record these because they seem like passing comments at the time.

Pregnancy, in particular

This is the most frequently litigated limb and the one employers most often misunderstand.

It covers dismissal because of pregnancy, because of an intended pregnancy, and for any reason related to the pregnancy. That includes dismissal connected to the leave taken around the birth, to the need for time off for medical appointments, or to an employer's view that the role cannot be performed while pregnant.

It is not confined to a formal dismissal. A refusal to allow an employee to return after parental (maternity) leave, or a return to materially different work, can be a dismissal in substance.

Retrenchment is not a shelter. A pregnant employee can be retrenched where there is a genuine operational reason and a fair process, but where the selection appears to have been influenced by the pregnancy, the dismissal is automatically unfair regardless of the restructuring around it.

Remedies

Where a dismissal is found to be automatically unfair, the court may order reinstatement, re-employment, or compensation.

Reinstatement is the primary remedy for an unfair dismissal generally, and it means going back on the same terms, usually with back pay. It is not ordered where the employee does not want it, where the circumstances make a continued relationship intolerable, where it is not reasonably practicable, or where the dismissal is unfair only procedurally.

Compensation is what most employees end up with, and the twenty-four month cap is a ceiling rather than a going rate. What the court awards depends on the seriousness of the infringement, the length of service, the loss suffered and the employer's conduct.

Timing

The referral period is the ordinary dismissal period: 30 days from the date of dismissal, to the CCMA or the relevant bargaining council. Our guide on referring an unfair dismissal to the CCMA sets out the process, and the CCMA deadline calculator works out the date.

Thirty days is short. Section 191(1) runs it from the date of dismissal or, if later, from the date the employer makes a final decision to dismiss or to uphold the dismissal, for example on an internal appeal. Do not rely on that later date without checking it: if the employer's process gives no appeal, or the appeal outcome is slow, the safer course is to refer within 30 days of the dismissal itself. A late referral needs condonation, which our guide on condonation at the CCMA explains.

Constructive dismissal and the overlap

An employee who resigns because the employer made continued employment intolerable may claim constructive dismissal, and where the intolerable conduct was itself for a section 187 reason, the resulting dismissal can be automatically unfair.

That combination arises more often than the case law suggests, because employees in this position usually resign rather than wait to be dismissed. A pregnant employee whose hours are cut and who is moved to a role designed to make her leave, or a whistleblower frozen out after a disclosure, may end up resigning and then find that the claim is characterised as an ordinary constructive dismissal.

Two practical points follow. Resigning is a decision with legal consequences and should not be taken without advice, because the employee then carries the burden of showing that the employment had become intolerable and that the employer caused it. And the reason behind the conduct should be documented while it is happening, not reconstructed afterwards: the emails, the changes to duties, the dates.

Worked example

This example is illustrative. Nomvula tells her manager she is pregnant in March. In April she receives her first ever written warning, for lateness. In May she is dismissed for poor performance. Her performance reviews for the previous three years were all satisfactory or better, and she received a merit increase in January.

The employer's position is that performance had deteriorated.

Nomvula's case is that the true reason was the pregnancy, which is automatically unfair under section 187(1)(e). The evidence she would assemble is the sequence and the contradiction: three years of positive reviews, a merit increase two months before the dismissal, no performance concerns raised until after the announcement, and a dismissal eight weeks after it.

The employer is not entitled to argue that dismissing a pregnant employee was nevertheless fair. Its only defence is that the reason was genuinely performance, and the timing and the paper trail are what that defence has to overcome.

Procedurally, she refers within 30 days to the CCMA for conciliation, and if that fails the matter goes to the Labour Court rather than to arbitration. Compensation is capped at twenty-four months rather than twelve, and reinstatement is available if she wants it.