A dismissed employee has 30 days to refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council. The steps below follow the Labour Relations Act as published on gov.za.
Who can refer, and by when
The dismissed employee refers the dispute in writing, to a bargaining council if the parties fall within that council’s registered scope, and otherwise to the CCMA. The deadline is 30 days from the dismissal or, if later, from the employer’s final decision to dismiss or to uphold the dismissal (section 191). For an unfair labour practice the limit is 90 days.
The referral must be served on the employer. The council or the CCMA may accept a late referral if the employee shows good cause.
What happens in conciliation
The CCMA appoints a commissioner who must try to resolve the dispute within 30 days of receiving the referral, unless the parties agree to extend it (section 135). The commissioner may mediate, run a fact-finding exercise or make a recommendation.
At the end, the commissioner issues a certificate saying whether the dispute was resolved.
Source: Labour Relations Act 66 of 1995, section 194. Chart: Rand Desk
When it goes to arbitration or the Labour Court
If the dispute is still unresolved, the CCMA must arbitrate at the employee’s request among other cases when the reason relates to conduct or capacity, when the employee does not know the reason, or when the employer made continued employment intolerable. The request must come within 90 days of the certificate, though the CCMA can condone a late one for good cause (section 136).
The employee may instead go to the Labour Court, among other cases, when the dismissal is alleged to be automatically unfair, based on the employer’s operational requirements, or tied to participation in a strike that did not follow the Act. That referral also has a 90-day limit. Disputes about probation start arbitration immediately after the certificate.
Who has to prove what
The employee must show that a dismissal took place. Then the employer must prove it was fair (section 192).
What the arbitrator can award
An arbitrator or the Labour Court may order reinstatement, re-employment or compensation. The Act says they must order reinstatement or re-employment unless the employee does not want it, the relationship would be intolerable, it is not reasonably practicable, or the dismissal was unfair only because of a procedural failure (section 193).
Compensation must be just and equitable and may not exceed 12 months’ pay for an unfair dismissal or an unfair labour practice, or 24 months’ pay for an automatically unfair dismissal (section 194). It is on top of any other amount the employee is owed (section 195).
An employee dismissed for the employer’s operational requirements is owed severance pay of at least one week’s remuneration for each completed year of service (section 196).
Related explainers: how UIF benefits work and how to claim and how the national minimum wage works.
The next step for any reader with a live dispute is to count 30 days from the dismissal, or from the employer’s final decision if that came later.
