DATE OF DISMISSAL – THE CLOCK IS TICKING

We are often faced with the question: “why is the date of dismissal relevant?” Unfortunately, ignorance is no excuse and we need our members to know and to understand the importance of this date. The date of a dismissal does not only announce a new chapter in your life. It plays a crucial role should you wish to lodge an unfair dismissal dispute.

The Labour Relations Act 66 of 1995 (LRA), section 191(1) directs inter alia that a dispute about the fairness of a dismissal must be made within – ‘…30 days of the 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…”  The date of your dismissal activates the 30-day period.

First Things First – What is a Dismissal

The LRA in section 186(1) gave insight into this, not so simple, action and defines dismissal as one of, not less than, 6 scenarios namely:

• “an employer has terminated employment with or without notice;
• an employee employed in terms of a fixed-term contract of employment reasonably expected the employer –
• to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew It on less favourable terms, or did not renew it; or
• to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee;
• an employer refused to allow an employee to resume work after she –
• took maternity leave in terms of any law, collective agreement or her contract of employment; or
• an employer who dismissed a number of employees for the same reasons has offered to re-employ one or more of them but has refused to re-employ another; or
• an employee terminated the employment with or without notice because the employer made continued employment intolerable for the employee; or
• an employee terminated employment with or without notice because the new employer, after a transfer in terms of Section 197 or section 197 A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”

The above excerpt makes it very clear that dismissal, in terms of the LRA, can take on many forms. Each one of the scenarios set out above needs to be dissected and has its own burden of proof.

Internal Appeal and the Date of Dismissal

In a recent article MISA looked at Internal Appeals and whether it should be the next step when you are dismissed. The short answer is that the internal appeal is only compulsory when you are bound by a Collective Agreement or Policy that prescribes an Internal Appeal.  

An internal appeal process extends the date of dismissal, as set out above, to the date of the final decision by your employer to dismiss. It is safe to state that whilst you are still following the internal process, the employment has not yet been terminated. The 30-day period is therefore activated once the sanction of dismissal is upheld.

The Meaning of ‘day’ in the 30-Day Time Period

The meaning of ‘day’ in terms of the CCMA and DRC Rules is a calendar day, calculated from the day after the day of dismissal and including the very last day of the 30-day period. The rules also provide that the last day must be excluded when the last day is a Saturday, Sunday, public holiday or on any day during the period between 16 December to 07 January.

Condonation

Unfair dismissal disputes that are lodged after the 30-day period, must be accompanied by a condonation application in which valid reasons must be provided showing the reasons for the late referral, prospects of success of the dispute and the extend of prejudice that will be suffered. There is no guarantee that the application will be granted and you could be left without recourse.

Conclusion

Do not be caught without recourse when you are, presumably, unfairly dismissed. The clock is ticking and 30 days go by faster than you think. Phone us and let us assist in determining whether your dismissal was unfair as soon as you are dismissed. Do not delay!!

MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance during this time:

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