Dismissed, retrenched, suspended or forced to resign, the clock started on that day. 30 days for a dismissal, 90 days for other unfair treatment. We act for employees across South Africa. We tell you what it is worth, what it costs and when not to run with it.
A dismissal in South African law requires both a fair reason and a fair procedure under the Labour Relations Act. Failure on either renders the dismissal unfair. This includes retrenchment without genuine consultation, dismissal for misconduct or incapacity without due process, and non-renewal of a fixed-term contract where there was a reasonable expectation of renewal. The referral period is 30 days from date of dismissal.
The Labour Relations Act protects employees against unfair conduct short of dismissal. This includes unfair demotion, suspension without pay, selective discipline, failure to promote, and withholding of benefits. Discrimination claims fall under the Employment Equity Act and BCEA breaches under the Basic Conditions of Employment Act. Most must be referred within 90 days from the date of the act.
I NEED CCMA HELP
We draft, file and serve your referral, manage conciliation, conduct arbitration and negotiate settlement. Where the CCMA Rules prohibit legal representation, we prepare your case fully, including the bundle, witness statements and cross-examination, to ensure you are equipped to proceed.
From the notice to attend a disciplinary hearing through to Labour Court review.
30 days
to refer an unfair dismissal to the CCMA
90 days
to refer an unfair labour practice
6 weeks
to take an arbitration award on review
Time is jurisdictional. If you are outside these periods, condonation is required. Condonation is discretionary and becomes harder with every week of delay.
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You have 30 days from dismissal to refer to the CCMA. Do not wait for your final payslip. Obtain legal advice before the deadline lapses.
The employer bears the onus to prove a fair reason and a fair procedure. We analyse the substantive reason, procedural compliance, and consistency applied, and advise on realistic compensation. Referral is to the CCMA or the bargaining council with jurisdiction over your industry.
Where an employer makes continued employment intolerable, a resignation may constitute a dismissal in terms of section 186(1)(e) of the LRA. Constructive dismissal is difficult to prove and requires evidence that resignation was the only reasonable option. The merits must be assessed before resignation. Evidence is materially easier to secure while you are still employed.
Section 186(2) of the LRA defines unfair labour practices relating to promotion, demotion, probation, training, benefits, suspension and disciplinary action short of dismissal. The test is fairness. The referral period is 90 days from the unfair act.
The LRA requires a genuine and meaningful consultation process under section 189/189A, fair and objective selection criteria, and correct payment of severance, notice and accrued leave. We interrogate whether the decision was pre-determined, whether criteria were objectively applied, and whether statutory payments were made.
The Employment Equity Act prohibits unfair discrimination on listed and arbitrary grounds including race, gender, pregnancy, age, disability and religion, and expressly prohibits harassment and sexual harassment in the workplace. These claims carry distinct evidentiary burdens and referral routes.
Short payment, unpaid overtime, leave pay, notice pay and unlawful deductions in contravention of the BCEA are enforceable. Depending on quantum and jurisdiction, enforcement is via the CCMA, Department of Employment and Labour, or Labour Court.
Before signing, your restraint, notice period, probation clause, commission structure and confidentiality undertakings require legal scrutiny. We advise in plain language on enforceability, risk and exposure.
Charges must be clear and supported by evidence. We advise on plea, prepare your defence, and represent you at the hearing where your disciplinary code permits representation. Procedural defects at hearing stage are costly to remedy at arbitration.
A restraint is enforceable only if reasonable and necessary to protect a legitimate interest. If a former employer is preventing you from taking up new employment, the restraint letter is not the final word. We assess enforceability, negotiate a release, or oppose urgent interdictory relief.
The Commission for Conciliation, Mediation and Arbitration adjudicates the majority of labour disputes in South Africa. Referral is free. The process is intended to be expeditious and informal, but time periods are peremptory and awards are binding. We advise you upfront where we are permitted to appear and where you will appear with our preparation behind you.
Jurisdiction is critical. The referral must be directed to the correct forum, CCMA or bargaining council, against the correct legal entity, and within time. A misdirected referral costs weeks. We ensure it is filed correctly at first instance.
Outside the 30 or 90 day period, you must apply for condonation on affidavit. You must explain the full delay, demonstrate prospects of success, and address prejudice. We draft the application.
Conciliation is the mandatory first stage. A commissioner facilitates settlement without evidence or record. Outcome depends on preparation. We determine your settlement parameters, what is negotiable and what is not, and conduct negotiations on your behalf.
Where conciliation fails, the matter proceeds to arbitration. The arbitration award is final and binding. Matters are won on evidence, not rhetoric. We prepare the documentary bundle, witness statements and cross-examination, and appear where representation is permitted or granted by ruling.
Most disputes settle. Settlement value is only one term. A valid agreement must also regulate the reference, confidentiality, restraint, and waiver of claims to ensure finality and prevent re-litigation. We negotiate and draft accordingly.
An arbitration award may be taken on review to the Labour Court within six weeks on the grounds that the commissioner committed a defect as contemplated in section 145 of the LRA, or reached a decision no reasonable decision-maker could reach. Reviews are protracted and expensive. We advise objectively on whether review is justified.
Thirty days from the date of dismissal for an unfair dismissal dispute. Ninety days from the act or omission for an unfair labour practice. Miss it and you are asking for condonation, which sits in the commissioner’s discretion and is never a given. Deal with it early.
At conciliation, no. In arbitrations about dismissal for misconduct or incapacity it is not automatic either. Either the commissioner and your employer agree, or the commissioner rules that representation is appropriate after weighing how complex the matter is and how evenly matched the parties are. In every other arbitration, and in the Labour Court, we appear for you. Where we cannot appear, we still prepare your bundle, your witness statements and your cross examination.
Not before you get advice. Constructive dismissal is one of the hardest claims to win, because you have to show the employer made continued employment intolerable and that resigning was your only reasonable option. Resign first and you may hand away the case. The evidence is far easier to collect while you are still employed.
Usually yes. A properly signed settlement or mutual separation agreement binds you and is hard to set aside. There are exceptions where you were misled or pressured into signing, or where the agreement was never explained to you. Bring it to the consultation and we will tell you if there is anything left to argue.
That is decided on how the relationship actually worked, not on what the contract was called. If your hours, your work and your income were controlled by the company, the law may still treat you as an employee. Both the LRA and the BCEA presume employment where certain factors are present and you earn below the BCEA earnings threshold.
Reinstatement, re-employment or compensation. Compensation for an ordinary unfair dismissal is capped at twelve months’ remuneration, and at twenty four months where the dismissal is automatically unfair, for example a dismissal for pregnancy, union membership or taking part in a protected strike. In practice most awards land well below the cap.
Referring a dispute to the CCMA costs nothing. What you pay for is preparation and representation, and that depends on the matter. Book a consultation and you will get the cost of the process and our view on the merits before you commit to anything.
Thirty days to refer a dismissal. Ninety for unfair treatment at work. Every week that passes makes the claim harder to argue and the settlement smaller.
Bring your contract, your payslips and any letters from your employer, and we will tell you where you stand.