Labour

If you have just been dismissed, the most important thing on this page is a number. You have 30 days. Everything else can wait until you have read that part. If you are here for something else, a retrenchment consultation, a contract change you did not agree to, unpaid leave, or a restraint clause in an offer letter, the routing list below will point you to the right guide in one step.

What this area of law covers

Labour law sets the floor under every job in South Africa. Two statutes do most of the work. The Basic Conditions of Employment Act 75 of 1997 fixes minimum standards, which is where notice periods, leave, sick leave, overtime, Sunday pay and severance come from. The Labour Relations Act 66 of 1995 governs dismissal, unfair labour practices, retrenchment and the dispute forums, including the Commission for Conciliation, Mediation and Arbitration, known as the CCMA. The Employment Equity Act 55 of 1998 deals with discrimination and equal pay for work of equal value. The Unemployment Insurance Act 63 of 2001 gives you a claim against the Unemployment Insurance Fund when work ends.

The situations people arrive with are practical. You were fired and you were never given a hearing. You were charged with misconduct and you think the outcome was decided before you walked in. Your employer says the company is restructuring and you are not sure whether the process is a real consultation or a formality. You resigned because the workplace became impossible and you want to know if that counts as a dismissal. You were off sick for a long stretch and came back to a disciplinary notice. Your final payslip is missing leave you had accrued. A new employer wants you but your old contract has a restraint of trade in it.

The system is deliberately built so you can use it without an attorney. The CCMA is free, its staff will help you complete the referral form, and legal representation is not automatic at arbitration for misconduct and incapacity dismissals. That design point matters when you are deciding what to spend.

Where to start, by problem

If you were dismissed and want to challenge it, start with how to refer an unfair dismissal to the CCMA. File first, read the rest later. The referral costs nothing and it protects your position.

If you want to know whether the dismissal was fair at all, read what is a fair reason for dismissal in South Africa. Fairness has two halves, the reason and the process, and an employer must get both right.

If there was no disciplinary hearing, read can I be fired without a disciplinary hearing.

If you resigned because conditions became intolerable, read what is constructive dismissal. This is a hard case to win and the guide is honest about why, but it is a real claim.

If you were dismissed while ill or after long absence, read can I be dismissed for being off sick. Incapacity is treated differently from misconduct.

If your employer is retrenching, read what are my rights during a retrenchment consultation first, while the process is still running, and then can my employer retrench me without paying severance.

If you have been retrenched and need income, read how to claim UIF after being retrenched. This is separate from any CCMA dispute and you can do both.

If your employer changed your job, hours, pay or reporting line, read can my employer change my contract without my consent.

If you are resigning and need to know the notice you owe, read what is the notice period when you resign.

If your final payslip is short, read do I get paid for unused leave when I leave a job.

If a restraint clause is blocking a new job, read is my restraint of trade enforceable.

If you want to know what the process will cost you in time and money, read how much does the CCMA cost, how long does a CCMA case take and how much compensation can the CCMA award.

The deadlines that catch people out

Thirty days for a dismissal. An unfair dismissal dispute must be referred to the CCMA or the relevant bargaining council within 30 days of the date of dismissal. The clock runs from the dismissal, not from the day you gave up hoping the employer would change its mind, not from the day your internal appeal was decided, and not from the day your final payslip arrived.

Ninety days for an unfair labour practice. That covers unfair conduct about promotion, demotion, training, benefits, and unfair suspension. The clock runs from the act or from the day you became aware of it.

Late means condonation. A late referral is not automatically dead, but you must apply for condonation and explain the delay, the length of it, your prospects of success and the prejudice to the other side. It is an extra application, it can be refused, and it is the most common reason a good case never gets heard.

After conciliation. If the dispute is not resolved, a certificate is issued and there is a limited window to request arbitration. Diary it the day you receive the certificate.

Reviewing an award. Taking a CCMA arbitration award on review to the Labour Court has its own time limit, running from the date the award was served on you.

UIF. Apply as soon as work ends. Do not wait for the outcome of a dismissal dispute.

The CCMA deadlines calculator works all of these out from your dates.

What it costs, and what is free

The detail is on what does labour cost. The headline is that the main forum charges nothing.

The CCMA is free at every stage. Referring, conciliation, arbitration and the award all cost you nothing, and you may represent yourself throughout. Bargaining councils in your sector work the same way. The Department of Employment and Labour enforces unpaid money owed under the Basic Conditions of Employment Act, such as notice pay, leave pay and severance, at no charge. If you belong to a trade union, an official represents you at no extra cost. Legal Aid South Africa applies a means test and takes some labour matters. University law clinics and community advice offices take others.

What you pay for is a private attorney, and the most useful thing to buy is usually advice and preparation rather than an appearance, since representation at arbitration in misconduct and incapacity matters is not automatic.

The mistakes that cost the most

Waiting for the internal appeal. People let 30 days pass because HR said the appeal was still running. The CCMA clock does not pause for internal processes.

Resigning to make a point. Resignation ends the employment relationship and usually ends the unfair dismissal claim with it. If you are being pushed, get advice before you write the letter.

Signing a mutual separation agreement on the day. These almost always include a waiver of your right to refer a dispute. Once signed, the CCMA route is generally closed. Take it home and read it.

Treating a retrenchment consultation as an announcement. Consultation means the employer must genuinely consider alternatives you raise. If you say nothing during the process, you have far less to argue about afterwards.

Arriving at arbitration with a story instead of documents. Bring the contract, payslips, the charge sheet, the hearing notes, warnings and the dismissal letter, in date order.

Assuming an attorney can appear for you. In a misconduct or incapacity arbitration the commissioner decides whether legal representation is allowed. Agree with any attorney upfront what happens to the fee if it is refused.

The tools on this site that help here

• CCMA deadlines works out your referral deadline, whether you already need condonation, and every date that follows.
• Notice period tells you the minimum notice either side must give based on your length of service.
• Retrenchment package works out the minimum severance, notice and leave payout the law requires.
• Leave payout works out the annual leave you are owed when you leave.
• Sick leave tracks your paid sick days over the three year cycle the law actually uses.
• Overtime pay works out overtime, Sunday and public holiday pay from a monthly salary.
• UIF benefits estimates what the fund will pay you and for how many days.
• CCMA referral checklist is everything to gather before you complete the referral form.
• Grievance letter to your employer puts a problem on record before it becomes a dismissal.
• Resignation letter with notice gives proper notice and asks for your certificate of service and leave pay.

When you need an attorney

Get one when the dismissal may be automatically unfair, for example for pregnancy, union membership or activity, or a protected disclosure, because the law is more technical and the compensation cap is higher. Get one when the claim is discrimination or equal pay under the Employment Equity Act, which follows its own route. Get one when you are outside the 30 or 90 day deadline and need a condonation application that will be properly argued. Get one when the matter is going to the Labour Court, whether as a retrenchment dispute or a review of an award, because costs orders there are real. Get one when a former employer is enforcing a restraint against you in the High Court, often urgently. Get one when the employer has senior counsel or an in house labour team and the amount at stake justifies matching them. And get one to read a settlement agreement before you sign it, because that signature is usually final.

For everything else, phone the CCMA on 0861 16 16 16 and refer the dispute yourself. LawMatch is not a law firm. This page is general information about South African law, not legal advice about your situation.