4 January 2010

The correct date of a dismissal might not always be easy to establish at first glance, this is true especially for when an employee appeals against his/her dismissal.  The date of dismissal is of importance when an unfair dismissal dispute is referred, as the time frame for referring such a dispute to the CCMA or a relevant Bargaining Council is 30 days from the date of dismissal.  Referral outside the stipulated time frames will mean that a condonation (condoning the late referral) application must be brought, which depending on the facts might not be granted.  This will result in the employee having no recourse against his/her previous employer.
The date of dismissal also plays an important role in the calculation of compensation.   If the dismissal was found to be unfair an award of compensation ‘equivalent’ to the employee’s remuneration at the date of dismissal can be made by the relevant forum.
The applicable legislation in this regard is sections 190 and 191(1) of the Labour Relations Act 66 of 1995.

Section 190 of the LRA determines that:
    “(1) The date of dismissal is the earlier of –
(a)     The date on which the contract of employment terminated; or
(b)     The date on which the employee left the service of the employer.

Section 191of the LRA determines that:
“(1) (a)  If there is a dispute about the fairness of a dismissal, or a dispute about an  unfair labour practice the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to –
(i)     A council, if the parties to the dispute fall within the registered scipte of that council; or
(ii)    The Commission, if no council has jurisdiction.
(b)      A referral in terms of paragraph (a) must be made within –
(i)     30 date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal;
(ii)    90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence.

•    When an employee has been summarily dismissed (fired with immediate effect) by his/her employer the date of dismissal would be the day the employee is discharged. 
•    When an employee is dismissed with notice and has to work throughout the notice period the date of dismissal is not the date on which notice of termination was given, but on the very last day of the notice period. 
•    When an employee is dismissed with notice, but payment is received in lieu of notice, thus the employee does not have to work throughout the notice period, the date of dismissal will be the last day of actual service with the employer.  In such an instance, the dismissed employee will be free to enter into an employment contract with a new employer immediately.
•    When an employee is dismissed with or without notice and he/she appeals against the dismissal the date of dismissal will be the date on which notice of the dismissal was given, despite the lodging of an appeal. 
    There have been various controversial judgements in this regard, but the judgement in the case of Edgars Stores Ltd v SACCAWU & Another [1998] 5 BLLR 447 (LAC) confirmed that the date of dismissal will be:
“Where an employee was dismissed on 8 November 1996 and her appeal was turned down on 13 December 1996, it was held that “the date when the dispute about the fairness of the dismissal arose was the date on which the dismissal occurred”. The date of dismissal was therefore not extended by the appeal.”
    In SACCAWU & another v Shakoane & others  Zondo JP expressed a different view in that the date of dismissal can be different from the date when the dispute arises. According to him, where an employer has dismissed an employee a dispute arises when the employee challenges the fairness of the dismissal, and this occurred when the internal appeal was lodged.  Nicholson JA, dissenting, found in the light of the rules of administrative law that a dispute does not arise until a final decision has been given, i.e., until the appeal has been dismissed.
    In the case of Fidelity Guards Holdings (Pty) Ltd v Epstein & others  Pillemer AJ was of the view that a dispute does not arise until a final decision has been given, thus not until the outcome of the appeal has been finalised.  
    In First National Bank of South Africa v CCMA & others ,  Lyster AJ applied the ruling of the Labour Appeal Court in Edgars Stores Ltd v SACCAWU confirming that the date of dismissal is the date when the employee is told that he/she is dismissed and not the date when the employee is informed of the outcome of the appeal.

As illustrated above it is extremely important to determine the correct date of dismissal as it will impact the referral of an unfair dismissal dispute in many ways.  Please contact us immediately for expert and professional advise and assistance to determine your date of dismissal and to refer an unfair dismissal dispute.

Me. Lezanne Bouwer
(LLB, LLM (labour law))
General Manager: Legal Assistance

For Further Information, Please See:

http://www.retrenchmentassist.co.za/index.php/ccma- representation/arbitration

http://www.retrenchmentassist.co.za/index.php/ccma-representation/dispute-resolution-process

http://www.retrenchmentassist.co.za/index.php/ccma-representation/conarb- process

http://www.retrenchmentassist.co.za/index.php/ccma-representation/concilliation

http://www.retrenchmentassist.co.za/index.php/ccma- representation/condonation

http://www.retrenchmentassist.co.za/index.php/ccma-representation/ccma-rules

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