In the world of work, not all dismissals are created equal. Most people understand that a company may have to let someone go for operational reasons, like retrenchment, or for poor performance or misconduct. There is, however, a distinct and far more serious category: a dismissal based on discrimination.

When an employee is dismissed because of their race, gender, disability, pregnancy, or any other ground listed in the Employment Equity Act, the law does not treat it as just another unfair dismissal. It treats it as a fundamental violation of a person’s constitutional right to dignity and equality. The Labour Relations Act defines this as an “automatically unfair dismissal”, which places it in a class of its own when it comes to legal consequences.

Why these dismissals are treated so seriously

There is a reason these matters are handled with far more severity than others. The law does not simply ask whether the employer followed the correct procedure. It looks at the nature of the discrimination itself. In essence, the employer has not only failed in its duty as an employer, it has actively infringed the employee’s fundamental human rights. That dual breach is what triggers a heavier legal response, both in the findings against the employer and in the compensation that may be awarded.

Compensation is not only about lost income

Consider a recent case involving a security guard who was discriminated against because of a stutter. The employer transferred the employee out of his position because of his speech impediment, and the Labour Court found that this amounted to unfair discrimination based on a disability, which is a listed ground under the Employment Equity Act. He was awarded four months’ remuneration as compensation.

That amount may seem moderate, but the case illustrates a vital point: compensation in discrimination matters is not necessarily tied to the employee’s actual financial loss from losing the job. It is intended to address the impairment of dignity and the psychological harm caused by the discriminatory treatment.

This is why some discrimination awards are far larger than people expect. Where a dismissal is automatically unfair because of discrimination, the law allows compensation that is “just and equitable” in the circumstances. The courts have been clear that they are not only compensating lost income; they are weighing the seriousness of the harm done to the person’s dignity and reputation, and in some cases the emotional distress the discrimination caused.

A signal to every employer

A substantial award also serves a purpose beyond the individual. It is a deterrent, and a signal to all employers that this conduct will not be tolerated in the South African workplace. That is why the figures can look high compared with an ordinary misconduct or retrenchment matter. Discrimination strikes at the heart of our constitutional values, and the financial consequences are meant to reflect that.

The bottom line

If you are dealing with a dispute of this kind, it helps to recognise that a dismissal based on discrimination is not just another HR headache, or a simple unfair dismissal for misconduct. It carries significantly higher financial and reputational consequences. The law does not merely aim to put the employee back where they were before the dismissal. It seeks to vindicate their rights and to discourage employers from undermining the dignity of the people who work for them. The focus is always on what is just and equitable to both sides, but in cases of discrimination the scales tip firmly towards the wronged employee.

Sources: Employment Equity Act 55 of 1998, section 6 (listed grounds) and section 50 (compensation). Section 187, Labour Relations Act 66 of 1995 (automatically unfair dismissal). Mmakau v Commission for Conciliation, Mediation and Arbitration and Others (JR2733/2021) [2026] ZALCJHB 14 (23 January 2026).

Tzvi Brivik (Author)
Director at Malcolm Lyons & Brivik Attorneys Inc.

Malcolm Lyons & Brivik advises employees and employers on dismissal, discrimination and workplace disputes, including CCMA and Labour Court proceedings. If you believe you have been discriminated against, or you are an employer facing such a claim, contact us for an assessment.

Telephone:
Cape Town Office:
Telephone: +27 (0) 21 425-5570
E-mail: [email protected]

Johannesburg Office:
Telephone: +27 (0) 11 268 6697
Email: [email protected]

Contact form: