When Leaving isn’t Losing your Job: No Dismissal, No Case

The Labour Court in Johannesburg has once again emphasised a fundamental principle of South African labour law — before the Commission for Conciliation, Mediation and Arbitration (CCMA) can entertain any dispute, there must first be a dismissal as contemplated by section 186(1) of the Labour Relations Act (LRA).

This principle was reaffirmed in Prime Spot Trading 23 (Pty) Ltd t/a Manny’s Hardware v CCMA and Others (JR1939/22) [2025] ZALCJHB 449, a judgment handed down on 2 October 2025.

Mr Sekoati, an employee at a hardware store, faced a disciplinary hearing for misconduct. Following the inquiry, the employer imposed a sanction of unpaid suspension, not dismissal.

The written outcome stated clearly:

“As an alternative to dismissal, the period of the defendant’s suspension will be unpaid. The defendant is to resume duties on 1 March 2022.”

Rather than accept this sanction, Mr Sekoati refused to return to work and subsequently referred a dispute to the CCMA, alleging that he had been dismissed. The commissioner agreed with him, finding the dismissal substantively unfair and ordering his reinstatement.

The Legal Question

The central issue before the Labour Court was whether a dismissal — as defined in section 186(1) of the LRA — had in fact occurred. Without a dismissal, the CCMA would have no jurisdiction to hear the dispute.

Key Legal Principles

A dismissal occurs only where the employer terminates the employment relationship.
Where the employee elects to leave — even in disagreement with a sanction — it is regarded as a voluntary termination, not a dismissal.
The CCMA’s jurisdiction depends entirely on whether a dismissal, in law and fact, has taken place.

The Court’s Findings

The record before the Court confirmed that the disciplinary outcome permitted the employee to return to work and that he had chosen not to do so.

Whitcher J noted that even the commissioner recognised during proceedings that the outcome letter did not indicate a dismissal:

“This document never said that you are dismissed… It said, come to work on 1 March.”

The Court therefore held:

“There was no ‘dismissal’ as defined by section 186(1)… The CCMA thus lacked jurisdiction.”

Accordingly, the arbitration award was reviewed and set aside. No costs order was made.

What Employers and Employees Should Take Away

For Employers: Always record disciplinary outcomes in clear, unambiguous terms. Confirm explicitly whether the employment relationship continues — this can prevent false dismissal allegations.
For Employees: Refusing a disciplinary sanction and failing to return to work amounts to resignation, not dismissal.
For HR Practitioners and Legal Advisors: The CCMA cannot arbitrate unless a genuine dismissal has occurred; jurisdiction is determined by facts, not perception.

No dismissal, no case.
If an employee chooses to walk away rather than comply with a disciplinary sanction, the CCMA has no authority to intervene. The employment relationship ends by the employee’s own choice — not by the employer’s hand.

At HR Consult, we help businesses navigate the complexities of disciplinary procedures, CCMA processes, and compliance with confidence — ensuring every step is legally sound and procedurally fair.