Direct Answer
Section 187(1)(f) of the Labour Relations Act makes it automatically unfair to dismiss an employee because of disability. Unlike ordinary unfair dismissal (where compensation is capped at 12 months), automatically unfair dismissal awards can reach 24 months' remuneration. The Labour Court — not the CCMA — has jurisdiction over automatically unfair dismissal claims. You must refer the dispute within 30 days of dismissal.
What the Law Says
Your Legal Foundation
Labour Relations Act 66 of 1995
Section 187(1)(f)
“A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is — (f) that the employee is pregnant, intends to be pregnant, or gave birth to a child; or on account of disability.”
Labour Relations Act 66 of 1995
Section 193(1)
“If the Labour Court or an arbitrator finds that a dismissal is unfair, the court or arbitrator may order the employer to reinstate the employee from any date not earlier than the date of dismissal; re-employ the employee... or pay the employee compensation.”
Labour Relations Act 66 of 1995
Section 194(3)
“The compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration.”
What to Say
Exact Words to Use
“"My dismissal is automatically unfair under section 187(1)(f) of the Labour Relations Act because the reason for dismissal is my disability. I am referring this matter to the CCMA for conciliation and, thereafter, to the Labour Court for determination."”
Tone: Formal, factual
“"The real reason for my dismissal is my disability, not incapacity or misconduct. I deny that a proper process was followed under Schedule 8 of the LRA, and I deny that my disability was accommodated as required by the Employment Equity Act before dismissal was considered."”
Tone: Firm, written, to employer/CCMA
Common Questions
Frequently Asked Questions
What is the difference between automatically unfair dismissal and ordinary unfair dismissal for disability?
Ordinary unfair dismissal for incapacity due to disability follows the Schedule 8 process — the employer must show a fair reason (incapacity) and fair procedure. Automatically unfair dismissal under s187(1)(f) applies where the dismissal is because of the disability itself — not because the employee could not perform, but simply because they have a disability. For automatically unfair dismissal, the employer has no good-faith defence: the dismissal is unlawful regardless of the procedure followed.
My employer says I was dismissed for incapacity, not disability — how do I challenge this?
The real or dominant reason test applies. If the court is satisfied that the "incapacity" reason is a pretext and the actual cause of dismissal was the disability, it will find automatic unfairness. Evidence: the employer did not conduct a proper incapacity inquiry, never explored reasonable accommodation, and acted only after learning of the disability or medical diagnosis.
Do I need a lawyer for a Labour Court automatically unfair dismissal claim in South Africa?
Representation is strongly advisable. Labour Court proceedings are more formal than CCMA arbitrations. Legal Aid SA provides free legal representation for qualifying individuals. COSATU and FEDUSA affiliated unions provide legal representation to members. Some employment law firms work on contingency. You can also apply to the Legal Aid Board for assistance.
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