Automatically Unfair Dismissals: The Eight Reasons That Change Everything
Most dismissal disputes are about process and proportion — was there a fair hearing, was the sanction too harsh, was the misconduct proved.
Section 187 of the Labour Relations Act 66 of 1995 describes a different category. Here the reason for the dismissal is the problem, and no process can fix it. A perfectly run disciplinary hearing that ends in a dismissal for one of these reasons is still automatically unfair.
The eight reasons
Section 187(1) lists them. A dismissal is automatically unfair if the reason is:
(a) "that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV"
(b) "that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike … or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health"
(c) "a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer"
(d) "that the employee took action, or indicated an intention to take action against the employer by—(i) exercising any right conferred by this Act; or (ii) participating in any proceedings in terms of this Act"
(e) "the employee's pregnancy, intended pregnancy, or any reason related to her pregnancy"
(f) "that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility"
(g) "a transfer, or a reason related to a transfer, contemplated in section 197 or 197A"
(h) "a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act"
Four of those deserve unpacking, because they are the ones people do not realise they are standing on.
(d) — exercising a right under the Act
This is the quiet giant of section 187.
An employee who refers a dispute, lodges a grievance under the Act, gives evidence at someone else's arbitration, or joins proceedings, is protected. And the protection extends to indicating an intention to do any of that.
The common fear — "if I take this to the CCMA they will find a way to get rid of me" — is precisely what paragraph (d) exists to answer. A dismissal that follows the exercise of a right under the Act, or a stated intention to exercise one, is not merely unfair. It is automatically unfair, with the heavier consequences that follow.
That does not make an employee immune from dismissal for an unrelated reason. It means the employer will have to show the reason was in fact unrelated.
(e) — pregnancy, and everything related to it
Note the breadth: pregnancy, intended pregnancy, or any reason related to pregnancy.
That covers dismissal on falling pregnant, dismissal for taking or intending to take maternity leave, dismissal during or shortly after maternity leave dressed up as a restructure, and dismissal for a pregnancy-related illness or absence. It also covers a woman dismissed because she has said she intends to start a family.
(f) — discrimination on any arbitrary ground
Read the wording rather than the familiar list. The section says unfair discrimination "on any arbitrary ground, including, but not limited to" those it then names.
The listed grounds — race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status, family responsibility — are examples. An arbitrary ground not on the list still qualifies.
Note also that section 187 contains a further subsection qualifying paragraph (f), dealing with inherent requirements of the job and with normal or agreed retirement age. We have not read it, so treat paragraph (f) as wide but not unqualified, and take advice on those two situations specifically.
(g) — dismissal related to a business transfer
Where a business transfers as a going concern, employees transfer with it automatically. Paragraph (g) is what stops an employer unpicking that by dismissing the staff instead.
A dismissal that is "a transfer, or a reason related to a transfer" is automatically unfair. So the manoeuvre of retrenching before a sale to deliver a cheaper workforce, or of dismissing transferred staff and rehiring them on worse terms, runs straight into this paragraph. Genuine operational requirements arising after a transfer are a different matter, and the employer carries the burden of showing that is what happened.
What changes if the dismissal is automatically unfair
Three things, and together they are why the distinction matters more than any other in South African dismissal law.
The compensation ceiling doubles. Section 194(3) caps compensation for an automatically unfair dismissal at 24 months' remuneration, against 12 months for an ordinary unfair dismissal. It is a ceiling, not a tariff, and awards are usually well below it — but the range is twice as wide.
No process can save it. In an ordinary misconduct dismissal, a fair reason plus a fair procedure produces a fair dismissal. Where the reason falls in section 187(1), there is no procedure that makes it fair. The employer's defence has to be that the reason was something else.
The route is different. These disputes go to the Labour Court rather than to arbitration at the CCMA or a bargaining council. That is a more formal and more expensive forum, and it usually means legal representation. Get advice early rather than referring in the wrong direction and losing time.
Proving the reason
The practical difficulty is never the law. It is establishing why you were dismissed, when the letter says something else.
The timing is evidence. A dismissal three weeks after announcing a pregnancy, or ten days after referring a dispute, is a sequence a court will want explained.
Keep the sequence documented. The date you told the employer, the date you lodged the grievance, the date you referred the matter, the date of the first warning. A dated chronology is worth more than any characterisation of the employer's attitude.
Note what changed. Performance concerns that appear for the first time after a protected act, from a manager who had signed off good reviews, are the pattern these cases turn on.
Keep the 30 days in mind. The referral clock for a dismissal dispute is short, and it runs from the date of dismissal. Take advice quickly.
Where you have not been dismissed at all, but demoted, suspended or passed over, that is an unfair labour practice — a different provision, a 90-day window, and you keep your salary while you run it. Where you resigned because the employer made continued employment intolerable, that is constructive dismissal, and the burden of proving the dismissal falls on you. Both are covered separately.
For the forum itself, see how the CCMA works. Where the job is going rather than the employee, retrenchment and severance rights sets out that process, and employers will find the basics in probation and dismissal for a small employer.
Frequently asked
I was dismissed after telling my employer I was pregnant. Section 187(1)(e) covers pregnancy, intended pregnancy, or any reason related to pregnancy. If that was the reason, the dismissal is automatically unfair.
They fired me after I went to the CCMA. Section 187(1)(d) covers dismissal for exercising a right conferred by the Act or participating in proceedings under it — including indicating an intention to do so.
Does a fair hearing make it lawful? No. Where the reason falls in section 187(1), no procedure makes the dismissal fair. The employer's case has to be that the reason was something else.
How much can I be awarded? Up to 24 months' remuneration under section 194(3), against 12 months for an ordinary unfair dismissal. Actual awards are usually far below the ceiling.
Where is the case heard? Automatically unfair dismissals go to the Labour Court rather than to arbitration. That is a more formal forum — take advice before referring.
My employer says it was a restructure, not the transfer. Paragraph (g) covers a transfer "or a reason related to a transfer". A genuine operational restructure after a transfer is possible, but the employer has to show that is what it was.
Is the discrimination list closed? No. Paragraph (f) covers unfair discrimination on any arbitrary ground, "including, but not limited to" the grounds it lists.
