Your First CCMA Referral
Unfair dismissal, disciplinary process, conciliation, arbitration, review — what actually happens when an employee refers you, and why so many employers lose cases they should have won.
There is a particular kind of phone call I have taken many times over thirty years. A business owner, usually calm, usually convinced they are in the right, saying: “We let someone go, and now there’s a letter from the CCMA.” What follows is almost never a dispute about whether the employee deserved to be dismissed. It is a dispute about how it was done, when it was done, and whether anyone wrote it down. That distinction — reason versus process — is where most South African employers lose, and it is entirely avoidable.
In the 2024/25 financial year the Commission for Conciliation, Mediation and Arbitration recorded 193 069 referrals — roughly 3 700 new disputes every week. Just over half of them were unfair dismissal cases. The safety and security sector and retail were the heaviest referrers, each accounting for around 13% of the caseload.
Those numbers tell you something important. A CCMA referral is not an exotic event that happens to badly run companies. It is a routine feature of employing people in South Africa, and the employers who handle it well are simply the ones who understood the system before they were in it.
The CCMA Is Not a Court — and That Cuts Both Ways
Cheap, fast, informal, and binding.
It costs the employee nothing to drag you in, and the person deciding the case is not a judge — but the outcome still has teeth.
The CCMA is a statutory body created by the Labour Relations Act. It is independent of government, unions and business. An employee refers a dispute by delivering a form — no filing fee, no attorney required, no court papers. The CCMA schedules the matter, usually within about 30 days of receiving the referral, and gives the parties at least 14 days’ notice of the hearing.
Two consequences follow from that design, and employers tend to only absorb the first one.
The first is that the barrier to entry is essentially zero. A disgruntled ex-employee with a weak case and a strong grievance can put your business through the process at no cost to themselves. Costs orders against losing employees are unusual.
The second — the one that catches people — is that informal does not mean non-binding. An arbitration award is final. There is no appeal. It can be certified and enforced like a court order. Employers who treat the first notice as junk mail because “it’s only the CCMA” discover this in the worst possible way.
A note on what this article is
This is general business guidance, not legal advice. I am a business consultant, not an attorney, and the value I add sits upstream — in the policies, disciplinary discipline and record-keeping that determine whether you ever need an attorney at all. When a matter is live, contested and high-value, get a labour lawyer or a registered labour practitioner involved.
The Clock Starts Whether You’re Watching or Not
Every stage of the process has a deadline, and most of them are short.
Miss a date and you can lose on paperwork alone — no matter how good your case was.
Labour dispute resolution in South Africa runs on a chain of short, unforgiving time periods. Understanding them is not legal expertise; it is diary management. Here is the sequence in the order it actually happens.
30 days to refer a dismissal
An employee must refer an unfair dismissal dispute within 30 days of the date of dismissal — which is normally the date the employer made the final decision, including the outcome of an internal appeal. Late referrals require a condonation application.
90 days for an unfair labour practice
Disputes short of dismissal — unfair suspension, disciplinary action short of dismissal, disputes about promotion, demotion, training or benefits — carry a 90-day window from the act or omission complained of, or from when the employee became aware of it.
Condonation is not automatic
A late referral must be excused by a commissioner, who weighs the degree of lateness, the explanation for it, the prospects of success and the prejudice to the other side. Employers have a real opportunity to oppose condonation by affidavit — and frequently waste it by not responding at all.
Set-down and notice
The CCMA aims to schedule the matter within about 30 days of the referral, with a minimum of 14 days’ notice to the parties. Notices go to the address on the referral form. If your contact details are stale, this is where things start going wrong.
7 days to object to con-arb
Many individual dismissal and unfair labour practice matters are set down as con-arb — conciliation and, if that fails, arbitration on the same day. A party who wants them separated must deliver a written objection. The CCMA rules set that at seven days before the hearing, though the Labour Court has held that an objection cannot simply be ignored for being late.
90 days to request arbitration
Where conciliation fails and a certificate of non-resolution is issued, the referring party has 90 days to request arbitration. If they don’t, the matter goes quiet — and employers who assume silence means victory sometimes get a condonation application instead.
14 days to rescind a default award
If you don’t turn up, the commissioner can hear the employee’s version alone and issue a default award. You then have 14 days from becoming aware of it to apply for rescission — and you must show your absence was not wilful and that you have a real defence. A diarising error by your own office is rarely enough.
6 weeks to take an award on review
An arbitration award cannot be appealed. It can only be taken on review to the Labour Court, within six weeks of the award being served, and the applicant must then apply for a hearing date within six months.
The most expensive mistake in this whole article
Not attending. A default award is the single most common way an employer converts a winnable matter into a liability. The notice arrived at an old email address; the branch manager filed it; nobody diarised it. The commissioner heard one version of events and decided accordingly — and now you are arguing about rescission rather than about the merits.
“Unfair” Has Two Legs, and You Have to Stand on Both
A good reason badly executed is still an unfair dismissal.
You need a fair reason AND a fair process. Getting one right does not save you.
Section 188 of the Labour Relations Act sets the test that every dismissal must pass. The employer must show the dismissal was for a fair reason — related to the employee’s conduct, their capacity, or the employer’s operational requirements — and that it was effected in accordance with a fair procedure.
These are separate hurdles. This is the single most misunderstood thing about South African labour law. Employers arrive at arbitration with an airtight case that the employee stole from them, and lose — not because the theft is doubted, but because nobody told the employee what he was accused of, or the person who ran the hearing was the person who laid the complaint, or the “final warning” being relied on was never actually issued.
Alongside these sit two special categories worth knowing:
Automatically unfair dismissals — those linked to grounds like discrimination, pregnancy, trade union membership or the exercise of a statutory right. These carry a materially higher exposure and are heard by the Labour Court rather than being arbitrated at the CCMA in the ordinary course.
Constructive dismissal — where an employee resigns and claims the employer made continued employment intolerable. The employee bears the onus, but “he resigned, so there is nothing to answer” is not a defence in itself.
Most employers do not lose because they were wrong about the employee. They lose because they cannot prove what they did, when, or why.
The pattern behind most avoidable awardsThe Rulebook Changed in September 2025
The new Code of Good Practice: Dismissal is the biggest shift in three decades.
The guide the CCMA uses to judge you was rewritten. If your disciplinary code predates it, it is out of date.
On 4 September 2025 the Minister of Employment and Labour published a new Code of Good Practice: Dismissal, which took effect on publication. It replaces both the long-standing Schedule 8 code and the separate 1999 code dealing with dismissals based on operational requirements. For the first time, misconduct, incapacity and retrenchment sit under a single framework.
The Code is not legislation. It is guidance — but it is the guidance commissioners, bargaining councils and the Labour Court use as the benchmark for fairness. In practical terms it is the rulebook you are marked against.
Read the flexibility carefully, because it is widely misread. The Code does not permit small businesses to dismiss informally in the sense of casually. The minimum remains: tell the employee what is alleged, in a language they understand; give them a genuine opportunity to respond; tell them the decision. What has softened is the ceremony, not the substance.
The expanded probation provisions deserve particular attention. “Cultural fit” is now a legitimate consideration — but a vague complaint about attitude, with no objective evidence, no documented feedback and no attempt at counselling, will not survive scrutiny. More flexibility on paper usually means more record-keeping in practice.
Where Employers Actually Lose
Seven failures that turn a defensible dismissal into an award.
These are the specific unforced errors I see most often — none of them require a lawyer to fix.
No paper trail
Verbal warnings that were never recorded. Counselling that happened over coffee. Performance concerns raised for eighteen months but never in writing. At arbitration, an undocumented history does not exist. The employer carries the onus, and memory is not evidence.
Inconsistency
Two employees, the same misconduct, different outcomes. The Code reaffirms that sanctions must be applied consistently. Differences can be justified — a broken trust relationship in one case and not the other — but the justification must be recorded at the time, not invented at arbitration.
The chairperson problem
The manager who investigated the incident also chaired the hearing, also decided the sanction, and also heard the appeal. This is the classic procedural defect, and it is free to avoid: use someone else.
Vague charges
“Misconduct” or “insubordination” with no particulars. The employee must know what they are answering to, in enough detail to prepare a response, in a language they understand. Charge sheets that read like a mood are not charge sheets.
Skipping progressive discipline without justification
Dismissal remains a last resort under the Code. Serious misconduct — theft, assault, gross dishonesty — can justify dismissal for a first offence where trust is destroyed. But that reasoning must be demonstrated, not assumed because the conduct felt serious.
Treating retrenchment as a shortcut
Using “operational requirements” to remove a difficult employee is a well-worn route to a substantively unfair dismissal finding. Section 189 requires genuine, good-faith consultation, and the Code now prescribes the format of the notice that starts it.
Settling badly — or refusing to settle at all
Conciliation is a commercial decision, not a moral one. Some employers settle reflexively and teach their workforce that a referral pays. Others refuse on principle and spend far more defending a matter than the exposure justified. Both are decisions made without a number in front of them.
Conciliation, Arbitration, Review — Three Very Different Rooms
Understanding which room you’re in determines how you should behave in it.
The first meeting is a negotiation. The second is a trial. The third is not a second opinion.
Conciliation is a facilitated settlement discussion. It is confidential and without prejudice. No evidence is led, no findings are made, and parties are not entitled to be represented by attorneys. The commissioner’s job is to explore whether the matter can be resolved by agreement. Treat it as a commercial negotiation with a mediator in the room, and prepare accordingly — including knowing your walk-away number before you arrive.
Arbitration is a hearing. Evidence is led, witnesses are cross-examined, and the commissioner issues a binding award. On legal representation, Rule 25 of the CCMA Rules matters: where the arbitration concerns a dismissal for misconduct or incapacity, a party is not automatically entitled to be represented by a legal practitioner. Representation requires either the consent of the commissioner and all other parties, or a ruling by the commissioner after weighing the complexity of the matter, the questions of law raised, the public interest and the comparative ability of the parties. Plan on the assumption that a manager, not an advocate, will be presenting your case.
Con-arb compresses the two into one day. It is compulsory for probation-related dismissals and unfair labour practices, and for certain claims for money owing under the Basic Conditions of Employment Act. In those matters you cannot object. In other individual disputes you can — but if you have not objected and not prepared, you may find yourself running an arbitration you thought was a settlement meeting.
Review is not an appeal. There is no appeal against a CCMA award. A party who believes the award is defective may apply to the Labour Court under section 145 to have it set aside — on grounds such as commissioner misconduct, a gross irregularity in the proceedings, or the commissioner exceeding their powers. Disagreeing with the outcome is not a ground. Reviews are slow, expensive and lost far more often than employers expect.
What It Costs — and What’s Coming
The exposure is capped, but the cash-flow consequences arrive quickly.
Losing has a ceiling. Challenging a loss requires you to put up the money first.
Where a dismissal is found unfair, section 193 makes reinstatement the primary remedy — the employee returns to their job, potentially with back pay to the date of dismissal. Where reinstatement is inappropriate, compensation is awarded instead. Section 194 caps that compensation at the equivalent of 12 months’ remuneration for an ordinary unfair dismissal, and 24 months’ for an automatically unfair dismissal. There is no formula within those ceilings: the commissioner awards what is just and equitable.
Then comes the part employers routinely miss. Launching a review does not, by itself, suspend the award. Under section 145(7) and (8), the operation of an award is suspended only if the reviewing party furnishes security — equivalent to 24 months’ remuneration where reinstatement was ordered, or to the amount of the compensation awarded. The Labour Court can direct otherwise, but that requires a separate application. In the meantime the employee can have the award certified and enforced.
In short: an award against you is a payable amount, and disputing it usually means funding it first.
On the horizon — draft, not law
On 26 February 2026 the Minister of Employment and Labour published the Labour Relations Amendment Bill, 2025 alongside the Labour Law Amendment Bill, 2025, for public comment. The comment period closed on 28 March 2026. Among the proposals of most interest to employers: an earnings threshold — currently proposed at R1.8 million per annum — above which reinstatement would be available only for automatically unfair dismissals; a corresponding cap on compensation for high earners; a requirement that employees elect between a fairness claim and an unlawfulness claim rather than pursuing both; and a proposal that unfair dismissal protection would not apply during an employee’s first three months or a reasonable contractual probation period. The Bill also proposes expanding the CCMA’s powers across other employment laws and allowing commissioners to impose a fee for frivolous postponement requests.
These are draft proposals. They have not been enacted, may change materially during the parliamentary process, and should not be built into policy yet. What they do signal is direction — and it is worth watching.
The Bottom Line
Every year, the CCMA handles the better part of two hundred thousand disputes, and more than half of them are about dismissal. That is not a sign of a broken system. It is the cost of a labour framework that gives employees a genuinely accessible route to challenge how they were treated — and it is not going away.
What separates employers who navigate this comfortably from those who don’t has almost nothing to do with legal knowledge. It comes down to four things: a disciplinary code that reflects the 2025 Code of Good Practice rather than a template downloaded in 2014; managers trained to document at the time rather than reconstruct afterwards; a diary system that treats CCMA correspondence as urgent; and a clear-eyed view of settlement as a commercial calculation rather than an admission of guilt.
The businesses that get hurt are almost never the ones that behaved badly. They are the ones that behaved reasonably and then could not prove it.