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June 20, 2017

What is in a date?

Human beings seem to have the innate desire to remember significant dates! The date we were born, the date of our first day at school, the date we finish secondary schooling, the date we graduate from tertiary institutions, the date of our wedding and so the list goes on. From an employee relations perspective, the date of dismissal is a very important date, not only to be remembered but to be able to prove as well.

S191 of the Labour Relations Act defines when any labour dispute must be referred to the relevant dispute resolution body, such as CCMA or bargaining council. Disputes for unfair dismissals in terms of S191 1(b) are referred within 30 days of the date of dismissal or if it is a later date, then within 30 days of the employer making a final decision to dismiss or uphold a dismissal decision, typically understood to mean the result of an appeal process. S 191 2A makes provision for an employee whose contract is terminated with notice to refer a dispute once the employee has received that notice. This would then imply that an employee whose employment is terminated as a result of operational requirements due to retrenchment may refer such a dispute once he/she receives notice of that retrenchment. This then means that the employee could refer such a dispute prior to the date on which the employment of that employee was, in real terms, ended. Sections 191 must be read with S190 as the latter section defines the date of dismissal. The date of dismissal, in terms of S190, is defined as the earlier of the date on which employment ended or on which the employee left the service of the employer. In regard to a fixed term employee, remembering that a fixed term employee may refer a dispute for an unfair dismissal on the basis that his/her contract was not made permanent, the employee’s contract was not extended or renewed or the employee retained or the contract was offered to be renewed on less favourable terms, the date of dismissal is the date on which the less favourable terms were offered or the date on which the employer notified the employee of the intention not to renew the contract.

So, what is the fuss all about in regard to the date of dismissal? An employee referring a dispute must refer the dispute within 30 days of the date of the dismissal. Should the dispute not be referred within the 30 day period and there not be an application from the employee to file the dispute later than the prescribed period, the dispute resolution body such as CCMA or bargaining council would in that instance then not have jurisdiction to hear such a dispute.

I believe that getting the date of dismissal correct, knowing what that date is and being able to prove and show what the date is, consistent with the definition provided in S190 of the Labour Relations Act is therefore very important and indeed a big deal given that it holds a number of important implications for both employers and employees from an employee relations perspective.

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