The short answer
Ending employment in South Africa requires two things at once: a fair reason and a fair process. Getting the reason right and the process wrong is enough to lose at the CCMA.
And the protection is not something an employee earns over time. It applies from the first day of employment. For UK employers accustomed to a qualifying period before unfair dismissal rights attach, this is the single most consequential difference — and the one most often discovered too late.
Notice periods
Section 37 of the BCEA sets the statutory minimum:
| Length of service | Notice required |
|---|---|
| Six months or less | One week |
| More than six months, up to one year | Two weeks |
| One year or more | Four weeks |
Four rules sit alongside those figures, and each has caught employers out:
- Notice must be in writing, except where given by an employee who cannot write
- The period is reciprocal. You cannot impose a longer notice period on the employee than binds you
- The minimums cannot be shortened by agreement. A collective agreement may reduce the four-week period, but never below two weeks
- You may pay in lieu of notice — the employee receives full pay for the period without working it
One further trap: if you dismiss someone who has accrued annual leave, you cannot require them to take it during the notice period. It must be paid out.
Severance pay
Severance is narrower than UK employers often assume. Under section 41 of the BCEA it is owed on retrenchment — dismissal for the employer’s operational requirements — and not on dismissal for misconduct or incapacity.
The statutory minimum is one week’s remuneration for each completed year of continuous service, and it applies where the employee has completed at least one year before retrenchment.
That is a floor. More generous terms can be agreed, and where an employer has established a practice of paying above the minimum, that practice can itself become binding. Sections 41(6) to (9) provide a route for disputes about severance entitlement to go to the CCMA or a bargaining council, and on to arbitration.
The fairness test
South African law recognises three potentially fair reasons for dismissal: misconduct, incapacity (poor performance or ill health), and operational requirements (retrenchment). Each carries its own expected process.
Both limbs must hold:
- Substantive fairness — is the reason itself a fair one, and proportionate?
- Procedural fairness — was a proper process followed before the decision was taken?
For misconduct that generally means an investigation, notice of the allegations, a hearing at which the employee can respond and be represented, and a decision communicated with reasons. For poor performance it means clear standards, an opportunity to improve, and support to do so. For retrenchment it means genuine consultation on selection criteria and alternatives before the decision is final.
A dismissal that is substantively justified but procedurally defective is still an unfair dismissal.
The CCMA
The Commission for Conciliation, Mediation and Arbitration hears dismissal disputes. Two features shape how UK employers should think about it:
It is free and accessible to the employee. No legal representation is needed to refer a dispute, and no fee is payable. The practical barrier to a claim is very low.
Referral time limits are short and strictly applied. An employee who wants to challenge a dismissal must refer within a defined statutory window measured in weeks, not months. Confirm the current period before assuming a matter has gone away.
Where a dismissal is found unfair, remedies include reinstatement or compensation. Compensation can reach up to 12 months’ salary, and an automatically unfair dismissal attracts a higher ceiling. A retrenchment used to disguise an ordinary dismissal — removing a role and then hiring someone else to do the same job — falls into the most serious category.
What this means for a UK business
The exposure sits wherever the employment relationship sits. If you employ directly through a South African entity, it is yours. If you engage a contractor who is later found to have been an employee, it is still yours — see our guide on misclassification risk.
Under an Employer of Record, the EOR is the employer and runs the process, which is a large part of the model’s value. It does not mean terminations become casual — you still need a fair reason, and a provider worth using will tell you when you do not have one. But the procedural machinery and the CCMA exposure are theirs.
The practical advice is the same either way: document performance concerns as they arise, not retrospectively. Almost every procedurally unfair dismissal traces back to a paper trail assembled after the decision was made.
Frequently asked questions
Can we dismiss during probation?
Yes, but a probation dismissal still has to be fair. The process can be lighter than for a long-serving employee, and the standard for performance is more forgiving of a developing employee — but “we were within probation” is not on its own a defence.
Is there a qualifying period before unfair dismissal protection applies?
No. It applies from day one. This is the difference UK employers most often get wrong.
Does severance apply if someone resigns?
No. Severance under section 41 arises on retrenchment. A resignation ends employment without it, though accrued leave is still paid out.
What if the employee simply stops working?
Abscondment still requires a process. You cannot treat silence as resignation — the expected route is to attempt contact, and to hold a hearing in absentia if there is no response. Take advice rather than assuming the relationship has lapsed.
Can we agree a mutual separation instead?
Yes, and mutual separation agreements are common. They must be genuinely voluntary — an agreement signed under pressure can be challenged as a dismissal in substance.
Sources
- Basic Conditions of Employment Act 75 of 1997, sections 37 and 41
- Labour Relations Act 66 of 1995 — fair reasons for dismissal and CCMA jurisdiction
- Consolidated Employers Organisation — entitlement to severance pay
- ENSafrica — regulation of severance pay above the BCEA minimum
- CCMA / BUSA SME Labour Support — severance pay guidance
- Labour Guide South Africa — termination of employment
This guide is general information, not legal advice. Dismissal is fact-specific and the consequences of getting it wrong are significant. Referral time limits and compensation ceilings should be confirmed against current law. Take advice from a South African labour law practitioner before terminating any employment.