The CCMA is a dispute resolution body that was established in terms of section 112 of the Labour Relations Act (LRA). It’s aim is to promote fair practices in the workplace, and help resolve disputes between employers and employees. Do you want to take your unfair dismissal to the CCMA? Scorpion Legal Protection describes what types of unfair dismissal situations the CCMA handles.

The CCMA has jurisdiction over unfair and automatically unfair dismissals, but if a bargaining council exists for your industry, you must take your matter to them. Not all industries have a bargaining council, but many do. You can view the list of bargaining councils that have been accredited by the CCMA here.

We describe the kinds of dismissal situations that you can take to the CCMA below.

Unfair dismissals

Unfair dismissals under section 186(1) of the LRA include where:

• The employer terminates the contract of employment with or without notice. Fairness is determined based on the reasons and procedures followed by law.
• An employee on a fixed-term contract reasonably expected the employer to renew the contract, but the employer did not.
• An employer refuses to allow an employee to return to work after her maternity leave.
• An employer dismisses a number of employees for the same or similar reasons and then offers to re-employ one or more of them but refuses to re-employ others in this group.
• An employee terminates a contract of employment with or without notice because the employer has made continued employment intolerable (also called constructive dismissal).
• An employee ended the contract of employment with or without notice because the new employer transferred or merged the company and after this, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.

Automatically Unfair Dismissals

Unfair dismissals under section 186(1) of the LRA include where:

• The employee participated in or supported a legal strike or protest action.
• The employee refused to do any work normally done by an employee who at the time was taking part in the legal strike, unless that work was necessary to prevent a danger to life, personal safety or health.
• The employee refused to accept a demand in respect of any matter of mutual interest between the employer and employee. For example, the employer offers employees a wage increase during a strike and employees refuse the increase. The employer can use means like a lockout, but may not dismiss the employees because of their refusal to accept, as this would amount to an automatically unfair dismissal.
• The reason for dismissal involves the employee’s pregnancy, intended pregnancy or any reason related to her pregnancy.
• The employer unfairly discriminated against an employee based on (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. Dismissal based on age may not be automatically unfair if the employer can show that the employee has reached the agreed or normal retirement age in that job.
• The dismissal relates to a transfer, or a reason related to a transfer.
• The dismissal relates to a protected disclosure the employee made, as defined by the Protected Disclosures Act. A protected disclosure refers to an employee ‘blowing the whistle’ on his/her employer, for example, for fraud or sexual misconduct, etc. If an employee is dismissed because they have reported the conduct of the employer or fellow employees to an appropriate authority, it is an automatically unfair dismissal.

You may also be interested in:
Fixed-term contracts and warnings
Disciplinary hearings explained step by step
Step-by-step guide on going to the CCMA

If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A.

* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.