Fired Without Warning in South Africa: Wrongful Dismissal

What are the main employment laws that apply in South Africa?

The main employment laws in South Africa are the Labour Relations Act, the Basic Conditions of Employment Act, the Employment Equity Act, the National Minimum Wage Act, and sector-specific laws like the Occupational Health and Safety Act. Together they regulate contracts, wages, working hours, leave, discipline, dismissal, discrimination, and workplace safety.

Key legislation and what it covers:

• Labour Relations Act 66 of 1995 (LRA)
  • Unfair dismissal and unfair labour practices
  • Retrenchments (operational requirements dismissals)
  • Collective bargaining, trade unions, and strikes
  • Establishes CCMA, bargaining councils, Labour Court and Labour Appeal Court
• Basic Conditions of Employment Act 75 of 1997 (BCEA)
  • Minimum standards for working time, overtime, leave, notice, and pay
  • Written particulars of employment (what must be in your contract)
  • Sectoral determinations and earnings threshold
• Employment Equity Act 55 of 1998 (EEA)
  • Prohibits unfair discrimination (including harassment) in employment
  • Requires affirmative action at designated employers
  • Covers equal pay for work of equal value
• National Minimum Wage Act 9 of 2018
  • Sets a national minimum wage per hour
  • Allows limited exemptions on application to the Department of Employment and Labour
• Occupational Health and Safety Act 85 of 1993 (OHSA)
  • Employer duties to provide a safe and healthy workplace
  • Employee duties to comply with safety rules
• Compensation for Occupational Injuries and Diseases Act (COIDA)
  • Compensation for work-related injuries and diseases
  • Employer duty to register and pay assessments
• Unemployment Insurance Act & UIF Contributions Act
  • Unemployment Insurance Fund (UIF) benefits for job loss, illness, maternity, etc.
  • Employer duty to register employees and pay monthly contributions

Enforcement bodies include the Commission for Conciliation, Mediation and Arbitration (CCMA), various bargaining councils, the Department of Employment and Labour, as well as the Labour Court and Labour Appeal Court.

What must a valid employment contract in South Africa include?

A valid employment contract in South Africa must record key terms such as job title, working hours, pay, leave, and notice, and must meet or exceed the BCEA minimum standards. It can be verbal, but employers are legally required to give written particulars of employment for most employees.

Core requirements for an employment contract

Under the BCEA, written particulars must cover at least:

• Employer's full name and address
• Employee's full name and occupation or a brief job description
• Place of work and where the employee will report
• Start date (and end date if fixed term)
• Ordinary working hours and days of work
• Wage or salary rate, overtime rate, and method of payment
• Pay period (weekly, fortnightly, monthly)
• Any cash or in-kind payments (e.g. accommodation allowance)
• Leave entitlements (annual, sick, family responsibility, etc.)
• Notice periods or contract end rules
• Details of any collective agreement or sectoral determination that applies

Fixed-term, part-time, and probationary contracts

• Fixed-term contracts
  • For employees below the earnings threshold, fixed-term contracts longer than 3 months require a justifiable reason.
  • Without a valid reason, the employee may be deemed permanent.
  • On expiry, you cannot simply "let it lapse" if the employee had a reasonable expectation of renewal - that can be an unfair dismissal.
• Part-time and temporary employees
  • Must receive pro rata basic benefits and protections.
  • Labour brokers (temporary employment services) are regulated by the LRA, and in many cases the client becomes the deemed employer after 3 months.
• Probation
  • Probation must be reasonable in length for the job and purpose.
  • During probation, dismissal is easier but still requires fair reasons and at least a fair opportunity to improve performance.

Common contract pitfalls

• Contract terms that are less favourable than the BCEA or sectoral determination are generally invalid.
• Non-compete and restraint of trade clauses are enforceable only if they are reasonable in scope, time, and geography.
• "Independent contractor" labels do not override reality - if the relationship looks like employment, labour laws may still apply.

What are the minimum wage and basic conditions of employment in South Africa?

The national minimum wage sets the lowest legal hourly rate for most workers in South Africa, and the BCEA sets minimum standards for hours, overtime, leave, and notice. Employers may not contract out of these minimum standards except where the law allows more favourable treatment for employees.

National minimum wage

The National Minimum Wage Act sets a single hourly rate adjusted annually by the Minister of Employment and Labour. As of 2024, the national minimum wage is around R27.58 per hour (check the latest Government Gazette for the current figure).

Illustrative national minimum wage framework:

Some sectors (e.g. contract cleaning, private security) have sectoral determinations or bargaining council agreements that set higher minimum wages.

Basic conditions under the BCEA

• Maximum ordinary hours: typically 45 hours per week (excluding lunch breaks) for employees under the earnings threshold.
• Overtime pay: at 1.5 times the normal wage, or double on Sundays and public holidays if not ordinarily working those days.
• Notice periods:
  • 1 week if employed 6 months or less
  • 2 weeks if employed 6 to 12 months
  • 4 weeks if employed more than 12 months (and farm/domestic workers with more than 6 months service)
• Payment on termination: all outstanding wages, accrued leave pay, and any severance where applicable.

For "senior" or "high earners" above the BCEA earnings threshold, some working time protections do not apply, but minimum wage, discrimination, and unfair dismissal protections usually still do.

How do working hours, overtime, and rest periods work in South Africa?

For most employees, ordinary working hours are capped at 45 hours per week, with specific limits on overtime and compulsory rest periods. Employers and employees can agree to reasonable flexibility, but not below BCEA minimums unless an exemption applies.

Ordinary working hours

• Per week: Up to 45 hours, normally 9 hours per day (if you work 5 days or fewer) or 8 hours per day (if you work more than 5 days).
• Employees above the earnings threshold may be excluded from some working time clauses by agreement.

Overtime and Sunday work

• Overtime must be voluntary (in writing) and limited to:
  • Maximum 10 hours per week, and
  • 3 hours per day.
• Overtime pay:
  • At least 1.5 times the normal rate, or
  • Normal rate plus time off in lieu by agreement.
• Sunday work:
  • Double pay if you do not usually work on Sundays.
  • At least 1.5 times pay if Sunday is part of your normal working week.

Rest periods and meal breaks

• Daily rest: At least 12 consecutive hours between ending work on one day and starting the next.
• Weekly rest: At least 36 consecutive hours, including a Sunday unless otherwise agreed.
• Meal interval: At least 1 continuous hour after 5 hours of work (can reduce to 30 minutes by written agreement).

What leave are employees entitled to in South Africa?

Employees are entitled to annual leave, sick leave, family responsibility leave, and maternity/parental leave as a minimum under the BCEA, plus public holidays. Employers can offer more generous policies but not less than the statutory minimum.

Overview of leave entitlements

Key rules and practical points

• Annual leave accrues and the employer must allow you to take it within 6 months after the end of the leave cycle.
• On termination, the employer must pay out any accrued but unused annual leave.
• For sick leave, the employer may require a medical certificate if you are absent:
  • More than 2 consecutive days, or
  • On more than 2 occasions in an 8-week period.
• Maternity and related leave protect you from dismissal or unfair treatment due to pregnancy or childbirth; such dismissals are often automatically unfair.

When is a dismissal unfair or automatically unfair in South Africa?

A dismissal is unfair if it does not follow a fair procedure or if there is no fair reason related to conduct, capacity, or operational requirements. A dismissal is automatically unfair in specific situations such as discrimination, pregnancy, union activity, or whistleblowing.

Types of fair reasons for dismissal

The LRA recognises three broad categories:

• Misconduct - breaking workplace rules, theft, fraud, insubordination, etc.
• Capacity - poor performance or ill health/injury that prevents you from doing the job despite support.
• Operational requirements - retrenchment due to economic, technological, structural, or similar needs.

Procedural fairness

• For misconduct, employers should:
  • Investigate the allegation and give the employee clear notice of charges.
  • Hold a fair hearing where the employee can respond, call witnesses, and be assisted (often by a colleague or union representative).
  • Consider mitigating and aggravating factors before deciding on dismissal.
• For poor performance, employers should:
  • Set clear performance standards and give feedback.
  • Offer counseling, guidance, training, or a reasonable opportunity to improve.
  • Warn about possible dismissal if performance does not improve.
• For ill health or injury, employers should:
  • Investigate the extent of incapacity and possible accommodation.
  • Consider alternative positions or adjustments.
  • Only consider dismissal as a last resort.

Automatically unfair dismissals

Automatically unfair dismissals are severely penalised and can lead to up to 24 months' remuneration as compensation or reinstatement.

Common automatically unfair grounds include dismissal for:

• Participation in lawful trade union activities or membership
• Pregnancy, intended pregnancy, or related reasons
• Refusing to do the work of a striking worker during a protected strike
• Whistleblowing (disclosure of unlawful or irregular conduct)
• Discrimination on prohibited grounds (race, gender, disability, etc.)
• Exercising rights under the LRA (e.g. taking a case to the CCMA)

Remedies for unfair dismissal

• Reinstatement or re-employment is the primary remedy, especially for procedurally unfair dismissals where trust is intact.
• Compensation:
  • Up to 12 months' remuneration for ordinary unfair dismissal.
  • Up to 24 months' remuneration for automatically unfair dismissal.

How does retrenchment work in South Africa?

Retrenchment is a dismissal for operational requirements and is lawful only if the employer has a genuine operational reason and follows a fair consultation process. Larger retrenchments trigger stricter procedures and often involve unions or workplace forums.

Fair reasons for retrenchment

• Economic reasons - declining profits, loss of contracts, cost cutting.
• Technological reasons - automation or digitisation making roles redundant.
• Structural reasons - restructuring, mergers, flattening management layers.

The consultation process (section 189 LRA)

Before retrenching, the employer must consult with affected parties:

1. Identify consulting parties:
   • Relevant trade union, workplace forum, or affected employees directly.
2. Issue a written section 189 notice covering:
   • Reasons for proposed retrenchment
   • Alternatives considered and why they were rejected
   • Number and categories of employees likely to be affected
   • Selection criteria proposed
   • Proposed severance pay, assistance, and timing
3. Consult in good faith:
   • Engage in joint problem solving about avoiding or minimising retrenchments.
   • Discuss selection criteria (usually "last in, first out", with fair deviations).
   • Consider alternatives such as redeployment, reduced hours, or voluntary severance.
4. Implement decision:
   • Give proper notice.
   • Pay severance and all outstanding benefits.

Severance pay

• Minimum statutory severance is 1 week of remuneration for each completed year of service.
• Some bargaining council agreements or contracts provide higher severance (e.g. 2 weeks per year).
• If an employee unreasonably refuses an offer of suitable alternative employment, they may forfeit severance pay.

Large-scale retrenchments (section 189A)

• Applies to employers above a certain size conducting large retrenchments.
• Triggers additional rules, including possible facilitation by the CCMA.
• Employees can challenge the fairness of the retrenchment in the Labour Court, and protected strikes may be used as a remedy.

How do you refer a labour dispute to the CCMA or a bargaining council?

You refer most individual employment disputes to the CCMA or the relevant bargaining council by completing a referral form and serving it on the employer within strict time limits. The CCMA process is free to file and usually starts with conciliation.

Which body: CCMA vs bargaining council?

• Bargaining council: If your industry has one (e.g. Metal and Engineering Industries, Road Freight, Clothing), it will usually handle disputes from that sector.
• CCMA: Handles disputes where there is no bargaining council or where legislation directs disputes to the CCMA (e.g. discrimination disputes under the EEA).

Referral deadlines

• Unfair dismissal: 30 days from the date of dismissal.
• Unfair labour practice: 90 days from the act or from when you became aware of it.
• Unfair discrimination: typically 6 months from the act of discrimination.

You can apply for condonation if late, but you must show good cause.

Steps to refer a dispute

1. Complete the referral form:
   • CCMA: Use form LRA 7.11 (or online e-referral system).
   • Bargaining councils have similar forms.
2. Serve the form on the employer:
   • Deliver by email, fax, hand, or registered post.
   • Keep proof of service (email delivery, fax report, signed receipt).
3. Lodge the form with the CCMA/bargaining council:
   • Submit online, by email, fax, or in person.
   • Attach proof of service on the other party.
4. Attend conciliation:
   • Informal, off-the-record process to try to settle.
   • Commissioner helps parties negotiate; no legal representation in many dismissal disputes unless agreed or permitted.
5. If unresolved, proceed to arbitration or Labour Court:
   • For most unfair dismissal disputes, you can proceed to CCMA arbitration.
   • Certain disputes (automatically unfair dismissal, large retrenchments, strikes) go to the Labour Court.

Typical costs and timelines

What protections exist against discrimination, harassment, and bullying at work?

South African law prohibits unfair discrimination and harassment in employment and requires employers to create a safe and respectful workplace. Victims can claim remedies through internal processes, the CCMA, or the Labour Court.

Unfair discrimination under the Employment Equity Act

Employers may not unfairly discriminate, directly or indirectly, on grounds such as:

• Race, gender, sex, pregnancy, marital status, family responsibility
• Ethnic or social origin, colour, sexual orientation, age
• Disability, religion, HIV status, conscience, belief, political opinion
• Culture, language, birth, or any other arbitrary ground

Discrimination includes:

• Differentiation in recruitment, promotion, training, or pay without a fair justification.
• Harassment (including sexual harassment) that creates a degrading or hostile environment.
• Victimisation for asserting your rights (e.g. lodging a grievance about discrimination).

Harassment and bullying

• Sexual harassment:
  • Includes unwanted advances, requests for sexual favours, or conduct of a sexual nature.
  • Employers must have policies and procedures to deal with such complaints.
• Other forms of harassment (including bullying):
  • Persistent insulting, belittling, or threatening behaviour can constitute harassment.
  • Harassment based on a protected ground often counts as unfair discrimination.

Remedies for discrimination and harassment

• Internal grievance and disciplinary processes, including dismissal of perpetrators.
• Referral to the CCMA for unfair discrimination disputes.
• Labour Court claims for compensation and damages (including for emotional distress in some cases).
• Orders compelling the employer to implement policies and training.

What are an employer's key compliance duties in South Africa?

Employers must comply with minimum employment standards, register for and pay statutory contributions, ensure health and safety, and follow fair procedures in managing performance, discipline, and dismissals. Non-compliance can trigger inspections, fines, CCMA awards, and Labour Court orders.

Core HR and payroll compliance

• Provide compliant employment contracts and written particulars of employment.
• Pay at least the national minimum wage or applicable sectoral/bargaining council minimums.
• Observe working hours, overtime, leave, and notice rules under the BCEA.
• Maintain accurate payroll records, payslips, and leave records.

Registrations and statutory contributions

• Unemployment Insurance Fund (UIF):
  • Register employees and pay monthly contributions (1% from employer, 1% from employee).
• Compensation Fund (COIDA):
  • Register as an employer and pay annual assessments based on risk and payroll.
• SARS:
  • Register as an employer, deduct PAYE and other taxes, and issue IRP5 certificates.

Health, safety, and policies

• Comply with OHSA, including risk assessments, safety training, and incident reporting.
• Adopt and enforce policies on:
  • Discipline and grievance
  • Equal opportunity and anti-discrimination
  • Harassment (including sexual harassment)
  • Health and safety
• For medium and large employers, comply with Employment Equity and Skills Development obligations (e.g. employment equity plans and reports).

When should you hire a labour lawyer or expert in South Africa?

You should involve a labour lawyer or experienced labour expert when the dispute is complex, high-value, or strategically sensitive, or when you feel outmatched by the other party. For straightforward CCMA matters, many individuals and small businesses manage the process themselves, but professional guidance often improves outcomes.

Situations where expert help is strongly advisable

• For employees:
  • Alleged automatically unfair dismissal (pregnancy, whistleblowing, discrimination, union activities).
  • Large financial stakes (e.g. long service, high salary, senior executive roles).
  • Complex discrimination or harassment claims.
  • Settlement negotiations where you want to secure a clean break (e.g. tax-efficient severance, references, restraints of trade).
• For employers:
  • Retrenchments, especially multi-employee or section 189A processes.
  • Designing or overhauling contracts, policies, or incentive schemes.
  • Disciplinary processes involving misconduct that may lead to dismissal.
  • Union recognition disputes, strikes, and lockouts.
  • Any matter already escalated to the Labour Court.

Typical fee structures in South Africa

How to choose the right expert

• Check that they focus on labour law and regularly appear at the CCMA/Labour Court.
• Ask about their experience with your type of issue (e.g. discrimination, retrenchment, executive exit).
• Agree fee structures and scope of work in writing before you proceed.
• For small businesses, consider a retainer with a labour consultancy for ongoing HR and legal support.

What are the next steps if you have an employment issue in South Africa?

The next steps depend on whether you are an employee or employer, but generally involve documenting the facts, using internal processes, and then escalating to the CCMA, a bargaining council, or the Labour Court if needed. Early advice from a labour expert often prevents mistakes and improves your negotiating position.

Next steps for employees

1. Document everything:
   • Keep copies of your contract, payslips, emails, warnings, and performance reviews.
   • Write down key events, dates, and witnesses while they are fresh.
2. Use internal channels first:
   • Lodge a grievance for unfair treatment, discrimination, or harassment.
   • Respond in writing to allegations or poor performance notices.
3. Calculate your deadlines:
   • 30 days for unfair dismissal, 90 days for unfair labour practice, around 6 months for discrimination.
   • Diaries these dates and aim to refer the dispute early.
4. Refer to CCMA or bargaining council:
   • Complete the referral form, serve it on your employer, and lodge it with the CCMA.
   • Prepare for conciliation: know your facts, your ideal outcome, and your bottom line.
5. Consider expert help:
   • Consult a labour lawyer or union official, especially for complex or high-value disputes.

Next steps for employers

1. Audit your documents and processes:
   • Review employment contracts, policies, and disciplinary records.
   • Correct any obvious non-compliance before it becomes a dispute.
2. Handle issues early and fairly:
   • Use progressive discipline and performance management rather than jumping straight to dismissal.
   • Record all meetings and agreements in writing.
3. Engage constructively in CCMA/bargaining council processes:
   • Prepare a clear chronology, evidence file, and realistic settlement range.
   • Attend conciliation in good faith; many disputes settle at this stage.
4. Invest in compliance and training:
   • Train managers on labour law basics and fair procedures.
   • Implement and regularly update HR policies, especially around harassment, discrimination, and discipline.
5. Seek specialist advice when needed:
   • Use labour lawyers or HR consultants for complex dismissals, retrenchments, and union issues.

Whether you are an employee or an employer, acting promptly, keeping good records, and understanding your rights and obligations under South African labour law will significantly improve your position in any employment dispute.